Dear Reader,

Louisiana v. Callais’ attack on the enforcement of duly enacted federal law nullified several judgments in contravention of Allen v. Milligan’s old vindication of statutory stare decisis. As a direct result, Allen was subsequently stayed in the shadow docket while the Court re-decides Allen as though its previous decision mandating a supercharged form of stare decisis did nothing. In a sense, Callais put every federal law, policy, and precedent in a position of double jeopardy that can be changed at any moment by ad hoc review — in other words, Callais is Dobbs on steroids.

The legal profession was generally unprepared for Callais because it was a recapitulation of the Slaughter-House Cases’ invention of The Anticanon. The anticanon facilitated a peculiar growth in lawyerly laziness beginning in the decades after Slaughter-House — a case that deemed Dred Scott overruled by the Thirteenth Amendment, while paradoxically upholding Dred Scott’s racist construction of the Declaration of Independence that excluded Black Americans. Once a case is tossed into the anticanon, as Slaughter-House did to Dred Scott, few take the time to understand exactly how the case went wrong or why we consider it worthy of anticanon status.

Slaughter-House, and its progeny currently ending in Callais, could have overruled anticanon cases, but that would have required the Court to describe why the decisions were wrong the day they were decided — void ab initio. Slaughter-House did not describe why Dred Scott was wrong the day it was decided. Had it done so, it would have had to extend broader rights to Black Americans pursuant to the Fifth Amendment and the Privileges & Immunities Clause, the Guarantee Clause, the Ninth Amendment and other sources of rights that existed when Dred Scott was decided. Slaughter-House’s invention of the anticanon to, in part, avoid explaining Dred Scott’s error demonstrated its role was more to preserve unjust decisions like Dred Scott than anything else.

Nevertheless, the anticanon appears to be an effort to avoid making the perfect be the enemy of the good, by attempting to maximize the number of people who agree that Dred Scott was wrong without rubbing their noses in why it was wrong. Yet, even in the light most favorable to the anticanon, it seems to be basic post-racialism by another name. Instead of answering the question of why Dred Scott was wrong, it endeavored to negate Dred Scott by recapitulating Dred Scott’s negation of good and evil in an end-of-history, Hegelian-absolute-idea sort of fashion.

Even though Dred Scott was marinated in Hegelianism, I am not one to seriously consider Hegel (or the woke crowd that seems to follow him these days) a “sorcerer” as Eric Voegelin did. Nor do I think of Hegelians as completely lost once they “enter[] into the magic circle the sorcerer has drawn around himself.” At the very least, the term “sorcery” is a term loaded with too much Puritanical baggage.

Calling something sorcery or magic merely to mark it as evil is self-contradictory, because being magical implies that evil is actually an interesting or beautiful thing. But the Hegelian dialectic as infamously carried out in Dred Scott and repeated in Slaughter-House is anything but beautiful or interesting. The utopian logic of the so-called Hegalian dialectic in both-and logic is extremely tired and boring, especially because it has not created a utopia and shows no signs of leading humanity to utopia.

After centuries of trial and error, Hegel’s old idea that a utopia will flow from humanity’s absolute paradoxes seems to be mere fatalism clothed in optimism. The Hegelian dialectic seems to be the systematized form of “toxic positivity” analyzed by Mary Trump as the primary symptom of Donald Trump’s religious beliefs. The toxic positivity of the American Puritans who hanged witches in Salem conspicuously prefigured Hegel’s later establishment of both-and logic as the foundation of his utopia machine.

The banality of evil can be dressed up by people hoping to vindicate good as a secular utopia just as it can be dressed up with mighty vanquishing angels tearing down the battlements of the devil in an epic scene of war. We saw this in the Salem Witch Trials and we see it today when so-called Christians dress up global war and unrest as though it has a deeper meaning in the unbiblical concept of rapture and Armageddon. But when actual people are demonized or vilified as if they were the great Satanic host God is meant to smite in the end times, they tend to come out looking more like clowns than devils — as Eichmann did in Jerusalem.

The paradoxical thinking behind Callais that is clearly rooted in horrible decision after horrible decision linking back to Dred Scott is actually too banal to address in a Substack post like this. The logic is so boring that it cannot be exhaustively addressed without losing every single reader to sleep or distraction. As Hannah Arendt noticed, in this “banality” lies evil’s real power.

If Arendt was right, banality is probably why Slaughter-House basically got away with extending Dred Scott’s central holding in the same breath as it recognized Dred Scott was invalidated constitutionally. It is also probably why Brown v. Board of Education got away with letting Plessy v. Ferguson live on. And it was also probably why The 1619 Project basically agreed with the KKK about white supremacy being a founding U.S. principle while holding itself out as an enemy of the KKK.

To use a concept from Harry Potter, banality seems to have been why Voldemort’s horcruxes worked so well. Voldemort was able to hide pieces of his soul in plain sight so that he could potentially live on forever. The items Voldemort cursed were not, in-and-of-themselves evil, but the effectiveness of his curses depended on the items remaining extremely mundane.

Voldemort’s undoing came about largely due to his choice of corrupting objects that retained some sense of flavor or interest that clued in the story’s protagonists — a goblet of Hufflepuff, a diadem of Ravenclaw. Being objects of interest or even glamour was the power of good at work, because only good can be marvelous, captivating, or sublime. So too in the law, when Callais corrupted the one person, one vote ideal the power of good tips off social justice advocates because the ideal of one person, one vote is interesting and thought provoking.

Thus, Callais came from the banality of Hegel’s presumption that good will automatically appear from holding tension between absolute opposites like slavery and freedom as in the problematic writings of W.E.B. DuBois. Instead of continuing to trust the process of Hegelain double-consciousness, Americans should take Arendt’s advice and seek for something new. Hopefully it is not too late to hunt for horcruxes in Supreme Court precedent to stop the Supreme Court from needlessly repeating the heinous errors of its checkered past.

As the end of the 2025 Supreme Court term approaches, when many highly anticipated decisions will be issued, we can be sure that whatever is decided will be explained away in Hegelian style. The subordination of Black voters will probably be explained as just part of the process of majority rule that the Founders and Framers allegedly adopted when they started the nation. Instead of raging aimlessly against a machine that is already built up around a long-standing anticanon that allows the Court to avoid having its gravest errors explained publicly, artists, writers, and musicians could expose the anticanon as a boring, drab, and altogether gauche judicial attempt to avoid naming its part in some of the most horrifying wrongs of American history so that we do not repeat them.

It is time to dream as Martin Luther King, Jr. dared to dream. Great dreams are not usually infested with the colorless banality of Hegelian philosophies that promise utopias and give only mediocrity as the Court did in Callais. If a great dream catches fire in the American mind, it can disrupt even the most deeply embedded horcruxes of federal jurisprudence, even now.

It should inspire hope that America’s salvation from its present struggles could be one big dream away. Many examples of American muses could be cited, but I think Kesha is the artist who most inspires my mind to dream greatly. May her voice throw a light into your imagination as it has done for me, and then, if you want, share your big dreams with me by sending me a private message or making a comment below.

Yours Cordially,

Joshua J. Schroeder, Esq.

Dear Reader,

Donald J. Trump is a teetotaler; he says he has never had a drink and has never smoked. This makes Trump’s alleged sex abuse scandals, general use of cuss words, slander, and other flagrant breaches of etiquette eerie products of abstinence rather than substance abuse. Even more paradoxical, is the throng of devout teetotalers who support Trump’s empowerment of notorious substance abusers to misappropriate some of the strongest language English contains to preserve the status quo.

Some of Trump’s closest followers in this regard are Democrats. The appropriation of English swear words by mainstream Democrats who argued Joe Biden was defending the “soul of the nation” was unexpected, because their rejection of their previous development of political correctness (“PC”) seemed to admit on its face that Biden-as-American-soul-warrior never passed the laugh test. And calling Justice Ginsburg the Notorious RBG would have worked in the 1990s, but today it comes off as what it appears: boldfaced pandering.

In short, the attempted rebrand of Democrats as non-PC backfired, giving little or no political payout. Meanwhile, the Republican Party paradoxically remade itself as the official anti-PC party when it dumped the Bushes along with their facially PC family values platform for Trump’s freewheeling-wrecking-ball platform. Now Trump is recklessly reducing some of the most electrifying English terms — like hope, change, revolution, social justice, and equal liberty — into milk toast.

If English terms continue to be abused in Trumpian style, the entire English language could fall into meaninglessness. The wonderful BBC documentary HyperNormalisation anticipated this problem of a people paralyzed by the normalization of radical realities from a psychological angle, that I rebrand here as “radical normalization” to address its legal-linguistic underpinnings in the English context. If my legal research holds, the English language has an ace up its sleeve that could help both Great Britain and the United States avoid a needless era of radical normalization or hypernormalisation where English itself may lose its ability to convey any real sense of the extreme.

After the renowned Puritan poet John Milton appropriated some of the most raunchy, sexual images in Camus, Paradise Lost, and Samson Agonistes to degrade the rights of women, many lost hope. For a time, misogynists reigned supreme as the English language itself seemed to tilt against the recognition of equality of women in public life while Milton steered the ship.1 But when the visionary poet Phillis Wheatley read Milton, she successfully charted a path through him into what is now known as the Romantic art form.2

On July 4, 1776, the Americans followed Wheatley’s lead and the United States was born through an unlikely path charted through the paradoxes of Milton’s Puritanical sex God. This sublime journey of faith through the impossible gave us the First Amendment, the Patent & Copyright Clause, and many other advances in statecraft. By charting her poetic course through Milton’s “boundless systems . . . Thro’ earth, thro’ heaven, and hell’s profound domain,”3 Wheatley recreated Milton’s Satan into a tragic hero that became the foundation of the Romantic art that later reverberated throughout Europe in the writings of Goethe, Longfellow, Dumas, Blake, Keats, Lord Byron, and the Shelleys, among many others.

Admittedly, there is insufficient direct historical evidence to unequivocally prove that Phillis Wheatley was the necessary link that drew Puritanical doom-saying into Romanticism’s future providential, allegories of love. Yet, Wheatley’s poetics were a conspicuous precursor to Romantic art that revolutionized Puritanical dirges into elegiac forms of encouragement to help the American Revolutionaries persist through their tribulations.4 In the times in which she wrote and the medium of Puritanical elegy that she chose, Wheatley took the world’s stage completely alone.

In time, Wheatley may be recognized as a singularity that caused a Romantic revolution in Europe for which white men primarily took the credit. In the autumn of 1772, Wheatley constructed Romanticism’s chrysalis in the fires of a trial where she unanimously won her right to claim credit for transforming the Puritan elegy from mere drudgery into a prophecy of change that fully manifested on July 4, 1776. In a few short months, she presaged transformations that would later be wrought by the American Revolution itself by traveling to England where her artistic form emerged transfigured — rippling out its global influence like a sable butterfly that unexpectedly initiated hurricanes of Romantic art across Europe by the unassuming flutter of her delicate wings.

For most of its history, the American judiciary also exhibited a tendency to absorb Black genius while keeping itself primarily white and male. It is well known that Reverend Pauli Murray strategically masterminded the legal framework the all-white and all-male U.S. Supreme Court adopted in Brown v. Board of Education, which the Court recently drew into question in Louisiana v. Callais. The Court’s controversial decision in Callais marked the end of an especially toxic Romantic era in American legal history when the charms of Black Americans were monetized by and used to burnish the reputations of white Americans without paying for a license.

The American judiciary’s culture has drastically changed from the last days when revelers like Justice Antonin Scalia and the Notorious RBG promoted a paradoxical sense of blusterous levity from the bench. Scalia, especially, would entertain the public by fanning himself like Scarlet O’Hara to protest the big, mean liberals, while boisterously lambasting his colleagues (especially Justice Kennedy) as usurpers and tyrants. Ever since his passing, however, the Supreme Court supplanted Scalia’s humorous self-contradiction with a bottomless sense of white grievance and fragility that is confusing to navigate.

In retrospect, Scalia and Ginsburg’s political-revenge themed revelry appears to be the last dregs of Justice Holmes’s Romanticism to be express from the American bench. The Court confirmed, in Callais and several other recent cases, that its sense of white grievance has no limit — effectively ending the era of Holmesian Romanticism that limited white grievance with the requirement of a humorous punch-line (however terrible the consequences an ill-humored judgement might be). As Wheatley knew, by Jefferson’s admission, when white men concluded that no God would support their systems of racial oppression they tended to abandon any sense of levity to throw caution to the wind as Justice Alito did in Callais. They seemed to decide that since they are going to hell anyway, like Cain who murdered his brother, they should make the most of the lives they have.

In his book Stamped from the Beginning, Ibram X. Kendi observed this fatalistic pattern in white America by explaining how the American slaveholders adopted the legend of Cain and the Land of Nod. These slaveholders misappropriated the Bible to justify chattel slavery laws upon Cain’s murder of his brother Abel by re-imagining Cain as the proto-slaveholder to create a sense of white grievance for themselves as heaven’s outcasts. Phillis Wheatley resolved this legend in her revolutionary poem On Being Brought From Africa to America where she re-imagined Cain as a redeemable Black man to destroy the legal basis for chattel slavery in this biblical legend.

Kendi, and his “woke” allies in The 1619 Project, not only rejected Wheatley’s magnanimous extension of God’s grace to white America, but they failed to recognize Christianity’s role in the anti-slavery phalanx of the American Revolution. In response, Reece Jones wondered at The 1619 Project’s inexplicable embrace of the KKK’s fatalistic retelling of American history that sought to erase the existence of Black American Revolutionaries like Wheatley.5 The “woke” crowd gained nothing for characterizing Wheatley as a mere circus act to flatter Thomas Jefferson’s racist dismissal of her poetry as though she did not leave her many American admirers, including Thomas Paine, George Washington, Benjamin Franklin, James Bowdoin, Samuel Cooper, and David Wooster, wonder-struck.

As Wheatley achieved a clear victory against slavery in the Revolution of 1776, not even the American South still perceives that arguing from a position of Cain’s murder of Abel was ever a valid argument for white superiority. This caused a mutilation in how all Americans read historical sources that covered up their real meaning even when they are openly presented before our eyes. For example, John Marrant’s characterization of slaveholders as our “modern Cains” in a sermon he preached in Boston 1789 appears to modern eyes as a sleight against slaveholders, because modern eyes see Cain as a moniker of complete hubris and illegitimacy.

But as Kendi himself noted, the slaveholders long held a view that Cain’s position as outcast of heaven made him into a tragic figure that was not entirely dealt with until the Union won the Civil War. In fact, Kendi maintains it is not entirely dealt with even now in the 2020s. However, in Marrant’s time, the reference to Cain referred to a mainstream and generally known appeal of slaveholders to Cain as a tragic figure, not an invention of Black America to lambaste slaveholders.

This misinterpretation of Marrant as flipping the script rather than saying it how it was, causes modern readers to see Marrant as more revolutionary than he was by seeming to turn the tables on the slaveholders. By the same token, Wheatley’s actual turning of the tables gets misinterpreted as piteous supplication, or, at best, as Grace Nichols’ “skin teeth.” The worst sin of these misreadings is that it let Thomas Jefferson off the hook by interpreting his saying that God would never side with slaveholders as a confession implying a desire for redemption rather than a recapitulation of the old Cain-based method of maximizing injustice through white grievance.

Therefore, Kendi’s mistreatment of Wheatley is a travesty,6 but as Professor Karla V. Zelaya noted, Kendi’s error seems to be based in a common misunderstanding of what Wheatley was doing in her works. In response to Wheatley’s successful revolution of Miltonic poetics, post-revolutionary white supremacists, like Rudyard Kipling, gradually shifted their use of the story of Cain and Abel to continue validating a sense of white grievance by associating themselves with Abel, as the murdered party. Kendi noted this counter-narrative that “circulat[ed] throughout England and the English colonies” in tracts that “wrote of Cain, or ‘the Southern man,’ as a ‘black deformed elf,’ and ‘the Northern white, like unto God himself.’”7

It is impossible to draw a straight line through the paradoxical ways the Cain and Abel story justified racism. Yet, racism itself was always paradoxical, in one hand justifying the importation of Black people to America for enslavement and on the other banishing them back to Africa to preserve white hegemony under the guise of teaching Africa to be civilized.8 These paradoxes were fully formed in the 1852 case Dred Scott v. Emerson where Justice William Scott absurdly held: “As to the consequences of slavery, they are much more hurtful to the master than the slave.”

Callais is a direct descendant of this unbelievable absurdity of white grievance, which sits at the root of all Dred Scott v. Sandford’s errors. The absurdity of white Americans claiming to be victims of their own power and privilege arbitrarily controlled Callais’ decision that enforcing the Voting Rights Act of 1965 would violate the Equal Protection Clause as racism against white majorities. As Wheatley once said: “How well the Cry for Liberty, and the reverse disposition for the Exercise of Oppressive Power over others agree, — I humbly think it does not require the Penetration of a Philosopher to determine.”

Intentional gaps left in the historical record of Wheatley’s work explains how mid-century American culture, like the 1989 classic Dead Poet’s Society, could feature Robert Herrick’s famous line “gather ye rosebuds while ye may” without acknowledging the way American slaveholders lived out the dark side of carpe diem. Herrick’s smarmy attempt to convince young Puritan women in 1600s England to betray their morals by sleeping with him revealed the dreary Puritan aesthetic as merely the accoutrement of a prevalent proclivity in 1600s England and America for deflowering virgins. Thus, the chattel slavery that occurred in America has a peculiar foundation, or at least a correlative, in paradoxical Puritanical poetry that seemed to spurn sex by fetishizing celibacy and even sexual abuse.

The performance of white male power in the bedchamber, symbolized by Jefferson’s rapes of Sally Hemings and his enslavement of his own children by her as an apparent remedy for Cain’s white male grievance against God, became the origin of U.S. immigration law in the Page Act of 1875 and the White Slave Traffic Act of 1910. Of course, it was controversial when Wheatley imagined white supremacists might be redeemed on what is potentially a sex positive basis. Yet, Wheatley endeavored to transform white supremacists into agents of Black liberation by retelling John Milton’s sex-obsessed story about sin and redemption in a way that would allow them to go straight to hell and then rise again out of their sin and error as forgiven and redeemed.

Callais resurrected the white grievance Wheatley and her followers opposed when it extended Dred Scott’s implicit conclusion that Wheatley failed to win over the intentions of enough white men to be legitimately considered one of the Founders of the United States. However, Wheatley inspired the Declaration of Independence in several ways, including by her inspiration of General David Wooster’s commission of a 1774 anti-slavery sermon The Religion of the Revolution and who later sacrificed his life in service of a multiracial future for America. Thus, Callais and similar recent decisions symbolize the success of propagandists and provocateurs who remade the Wooster-Wheatley alliance into a weak and failed attempt to disrupt to overarching pro-slavery purposes of the American Revolution, which should offend everybody.

Against the travesties of Kendi and The 1619 Project, Wooster’s blood cries out from the ground. The sacrifices of blood in the Revolution of 1776 still vindicate Wheatley’s defense of “the heaven defended race.” Her white followers, who bravely faced their own mortality for the hope of a real metropolitan providence rising from the complex multicultural American society of the 1700s, still venerate her revolution of the English language to save it from the Puritans of our day.

Yours Cordially,

Joshua J. Schroeder, Esq.

Note About the Topic of Language Discussed Above: Neal Allen’s Rule 6: Prefer Anglo-Saxon Words from Neal Allen and Anne Lamott’s wonderful book Good Writing: 36 Ways to Improve Your Sentences, anticipated the topic of radical normalization addressed in this post. Therein, Neal demonstrated that English, as a conquered and dominated language, has an almost spiritual slant toward the original words of the Native Anglo-Saxons, almost as if the language itself was made for for speaking back to one’s conquerors with words that cut to the heart and blood of a reader. As an attorney and legal scholar, this aspect of English etymology is clearer to me than most because my profession developed the English language that describes the Conquest of 1066 as the “catastrophe which determine[d] the whole future history of English law.”9 It was into this development of the law of Native Anglo-Saxons after the Norman Conquest that Neal’s rule derives its validity, because English itself tends to favor the words of the Natives to those of the conqueror. The discourse between Phillis Wheatley and John Milton addressed in the post above over the fate of the English language’s most extreme terms in the 1600s and 1700s, which has its own legal dimension, also engages the reasons for Neal to suggest the Anglo-Saxon words.

Spoiler Alert: This post contains spoilers of the Apple TV show Pluribus.

Dear Reader,

Despite being aware of the paradoxical times we inhabit, I was initially surprised by what people were saying about Louisiana v. Callais in the news. Some diagnosed Callais’ requirement of intentional discrimination as its “darkest sin,” but that was the least of its problems. Realizing that the public was not being told how Callais mutilated the Equal Protection Clause and how it nullified the Voting Rights Act of 1965 was more horrifying to me than Callais itself.

When I tried to process the radical errors in Callais with my sounding board, they expressed worry that if I wrote about it I would alienate everybody (including them). Upon hearing this, my mind snapped back to a scene in Pluribus where Carol Sturka (Rhea Seehorn) failed to convince her fellow human beings to resist an alien invasion. Remembering how Sturka alienated other humans by, perhaps, too harshly interrogating the alien invaders, I balked.

In the past, James Baldwin inspired my boldness to face difficult realities, because “nothing can be changed until it is faced.” And I’ve recently discovered Anna Quindlen who seems to support my choice to abandon “the protective coloration of the expectations of those around” me. But as my sounding board feared, and as Sturka demonstrated, facing the actual horror of Callais too zealously could deflate public support for my scholarship and potentially delay the changes I hope to inspire.

When I predicted legal development correctly in my scholarship, I would emphasize it as boldly as I could to generate more offers to publish. I was privileged with a legal platform where I published scholarship that embodied the ideal of legal prediction laid out by Justice Oliver Wendell Holmes, Jr., even as I criticized him. But the zeitgeist has fundamentally shifted.

Assassinations and assassination attempts are on the rise, and political insiders have started eating their own. People are more tense and reactive than they have ever been in my lifetime. In this new context, law reviews and news outlets are sensible of the reality that legal prediction can be blamed in the aftermath of tragedy for radical insensitivity, recklessness, or even cruelty.

The horror of Pluribus similarly rests upon the possibility that the United States so irrevocably betrayed its ideal of individualism that the rest of the world would rather succumb to an alien invasion than listen to another annoying American. It also seems to align free choice with inevitable doom, as though humanity’s ultimate failure is a result of our freedom. Yet, without a hope that the actions of a puny individual human being like Sturka might create meaningful change for the rest of humanity, the horror of Pluribus would fade into mere tragedy, romance, or lust.

But Pluribus is not a story about how to cope with inevitable doom like Euphoria. It did not veer into religious themes to give unavoidable tragedy some sort of meaning in our lives. Rather, Pluribus sought to captivate its viewers by forcing Sturka to face the radical jeopardy her unique freedom seems to put upon the human race without revoking the hope that Sturka’s feeble efforts could, even accidentally, create a positive effect for everybody.

Perhaps my desire to remain authentic about where we really are as a nation, while still pushing for social justice, will ruffle feathers. And perhaps those who built their careers upon the insistence of their own authenticity, like Quindlen, will defend my steps, or, at least, I can hope they will peruse my writings. To me, being a free thinker who publishes work for consideration by free thinkers is success.

Throughout her career, Quindlen consistently defended enforcing the terms of one’s own success and happiness. When critics called her crazy, Quindlen issued a defense of all free American thinkers against any similar fabricated charge of insanity in a speech to the 1999 graduating class of Mount Holyoke College where she said:

But I am not nuts. I am happy. I am successful on my own terms. Because if your success is not on your own terms — if it looks good to the world but doesn’t feel every day good in your heart, it’s not success at all. Remember always the words of Lily Tomlin: “If you win the rat race, you’re still a rat.”

Perhaps my general rejection of the proverbial rat race is what worries my sounding board most, and perhaps it is also what makes them beam with pride. Remaining authentic in a time that rewards manufactured white grievance can be scary. But I think Quindlen was right. Even if you are not leading major revolutionary movements like Phillis Wheatley or banking huge monetary rewards for your work, you can still be happy.

That said, I have taken the note. It may no longer be safe to run headlong into arguments and observations that might have secured more publishing contracts for me in a previous era. Perhaps, public authenticity by any means necessary was always a fool’s errand and a Millennial fantasy that unfairly burdened Gen-Z with an impossible standard of self-expression.

Authenticity should never be standardized as some kind of benchmark, because performative authenticity is inauthentic. It would also be oppressive to presume that everyone has the resources to afford authentic expression when a growing number of Americans must be inauthentic in order to survive. But as for me and my own, I will repeat Quindlen’s words as a sort of benediction to my own situation: “I am not nuts. I am happy. I am successful on my own terms.”

Yours Cordially,

Joshua J. Schroeder, Esq.

Dear Reader,

These days it can be hard to stay on your feet. You can prepare for the worst and still be thrown “off the barge” by the choices of your family, your community, or the nation itself.1 As the mind reels, it instinctively casts around for some shoreline in the past — an anchor in time — to stop the feeling of aimless drifting.

For example, when I was recently thrown and my mind began to cast about for solid ground, I landed on Carole King’s song I Feel the Earth Move, which I remember my mom listening to when I was a kid. This provoked many questions for me: Was there ever actually a time when a person’s sexual attraction was enough to leave them shook? What was the simpler world the Baby Boomer generation inhabited where sex was enough to throw a person off like an earthquake?

In these days of societal upheaval, King’s lyrics seem forced. It feels like they came from a time that was so tranquil that the small tremors of an orgasm could change a person’s whole life. But, in these days, the most pious nun in Rome would probably understand why it might be worth catching even the aftershock of an orgasm on our way to what seems to be the end of the world.

In this fraught epoch, basic human pleasure appears more as stable bedrock than fault-line. Perhaps it was the marriages of sexual partners whose gender ideologies were always at war with the other that was the cause of King being thrown so easily by the mere prospect of sex in the early 1970s. The reckless building of several lives over the fault lines that divide America, as the Boomers endeavored to do, could be the great sin for which sex and lust gets the blame.2

Fault-lines in American society that the Boomers tried to smooth over with the thrill of sexual connection are being revealed as self-destructive. Connecting with your destroyer through sex was passed down by the Boomers as nostalgia to Lana Del Ray and Ethel Cain. But maybe those who are buying this nostalgia as their anchor in the present earthquakes of America are being honest about their own position in this horror as its intended victims.

Perhaps Del Ray’s glamorization of sexual abuse in Ultraviolence, is simply a confession of Millennial nostalgia for Boomer-era sex that threatens American society. Speaking as an elder Millennial, I think we feel an obligation to remember The Deuce in order to swear off the hell it symbolized for our parents. Sex itself is not to blame for Del Ray’s nostalgic attempt to corrupt love with the violence Boomers passed down, because the thrill of sex is not the violence and prejudice depicted in The Deuce that Del Ray glamorized in the name of Hollywood icon Marylin Monroe.

Being thrown causes us to cast about for a foundation to stabilize ourselves, which led Millennial artists to turn our sights back to Boomer glamorizations of gender violence during the sexual revolution. But perhaps we do not need to embrace the divisions the Boomers failed to resolve to enjoy the stabilizing effect of sexual pleasure with those we are not divided from. Maybe we can rebel against Boomer-era nostalgia by engaging lovers who offer new ground to build a life upon without the threat of complete destruction lying at the very foundations of the lives we build.

Perhaps, our imaginations have more to offer than lingering in nostalgia for a time that never actually existed. When I enjoy new songs, my imagination often fills in better lyrics than the ones the artist chose. For example, in one of my favorite London Grammar songs, Metal & Dust, it almost sounded to me as though they sang “hope is just better than dust” where the lyric is actually “oh, it’s just metal and dust.”

I like my lyric better, but respect the artists’ choice. In my opinion, hope would have been a better conclusion than being real about an impending breakdown. When you build a life on trust, as the song goes, you are building on hope that the person or people you are building with will not betray you especially in your old age.

The creative forces of our minds can invent better paths forward by engaging in art and sex without cynically glamorizing love or beauty as though it automatically leads to or even causes death and suffering. Instead, by pushing forward upon wings of hope, human beings tend to follow love and beauty into the mystery of the great unknown. In our travels through sexual attraction and pleasure to find new families and to build new homes, death and suffering are only possibilities, while sexual awakening and life giving springs of newness and innovation are also possibilities.

A fair reading of Sylvia Plath lends even her stark poetry to this revelation. In Plath’s unabridged journals she disclosed how she was probably chasing God-like transcendence when she committed suicide. So, perhaps, it is appropriate to allow the poet who rejected the injustices of her times to provide a corrective to jog the public imagination from what appears to be a kind of desperate nostalgia-addiction:

What I fear most, I think, is the death of the imagination. When the sky outside is merely pink, and the rooftops merely black: that photographic mind which paradoxically tells the truth, but the worthless truth, about the world. It is that synthesizing spirit, that “shaping” force, which prolifically sprouts and makes up its own worlds with more inventiveness than God which I desire. If I sit still and don’t do anything, the world goes on beating like a slack drum, without meaning. We must be moving, working, making dreams to run towards; the poverty of life without dreams is too horrible to imagine: it is that kind of madness which is the worst: the kind with fancies and hallucinations would be a bosch-ish relief.3

Plath seemed to be noting that if one goes mad, one might at least go mad in the style of Hiëronymus Bosch’s Garden of Earthly Delights, a triptych that is partly depicted at the top of this article. However, there are safer examples than Plath’s for imaginative exploration that did not end in tragedy. Eve Babitz and Edna St. Vincent Millay offered better, though still flawed, examples of how the imagination can help a person thrive despite the injustices of the times.

Babitz knew her strategy of imagining love where it probably did not exist was an exception in her era — a time that allowed Ted Hughes to claim Plath’s life and genius as his own. Babitz’s grand dream that the Santa Ana winds might sweep herself and her sister into the sky to fly on brooms like witches, was her hopeful counter to the general regard for “the Santa Anas as some powerful evil.”4 Re-imagining witches and wizards as the heroes of the story, was, at a very basic level, a rejection of the Boomer-era madness Plath diametrically opposed for something closer to the imaginative visual odyssey Hiëronymus Bosch bestowed to the future.

Maybe there is something in these capacities of the human imagination for me to place my anchor, to ride out the present storms when my mind is thrown in the chaos. Maybe Bosch wasn’t as mad as Plath thought he was. Maybe Plath wasn’t as mad as Plath thought she was.

Maybe Plath and Bosch’s outlandish images were the anchors of their imaginations that helped them endure the passing prejudices of their day. Maybe pleasure isn’t as radical or dangerous as the Puritans of the 1950s made it seem. Maybe the almost maniacal Puritan rejections of sex and happiness that ceaselessly popped up in American history, as depicted in the Mia Goth horror film Pearl, spread the very dangers they held themselves out as resisting.

Maybe the Puritans were mad in the worst way, because they had no imagination and hated everything that made sense. Maybe our society is an anthem of humanity’s survival of storm after storm of Puritanical abuse out of which a fruitful vine still grows by feeding on the magic of the Santa Anas and every other mythological evil tracing back to John Milton’s Satan who Phillis Wheatley conspicuously redeemed. Maybe humans construct mythological evils to scare their neighbors out of loving each other as they should, as Milton did when he appeared to make Beelzebub a romantic consort to Satan in an apparent attempt to degrade romance and sex by weaponizing public prejudice against homosexuality.

Perhaps Milton’s degradation of straight sexual love by misappropriating public prejudice was the real evil that deserved the fear that the Puritans deployed against sex itself. Perhaps Oliver Cromwell would not have been able to ruin England, Scotland, and Ireland, but for the Puritan degradation of sexual love that asked God for abuse-as-love. Maybe this Puritan desire for austerity — for a thrice battering of the heart — was always a “Satanic” prayer (in the Miltonic sense) and maybe Milton’s “Satan” is the God to which the Puritans prayed to and received this abuse of themselves as though it could be sexually gratifying to ask for self-destroying ravishment.

Or maybe this is all in my imagination.

Yours Cordially,

Joshua J. Schroeder, Esq.

Stare Decisis as defined by Black’s Law Dictionary: “Lat. To stand by decided cases; to uphold precedents; to maintain former adjudications. 1 Kent, Comm. 477.”

Dear Reader,

John Milton believed that hypocrisy was “the only evil that walks / Invisible, except to God alone.” He must have been onto something, but I doubt he was correct. Hypocrisy is not invisible.

For example, Justice Kagan spent considerable time and energy, over many years, developing and expounding statutory stare decisis only to compromise it in Cox v. Sony. Then she rose in firm defense of it again in Louisiana v. Callais, only to see it die out in a paradoxical flourish of the Callais majority. Kagan’s apparent hypocrisy, as to her own principles of stare decisis, was potentially an attempt to make a deal with a hostile majority as she had successfully done in Allen v. Milligan.

In one sense, Kagan’s last straw was pulled in Callais, and as a result there is potentially no basis to hope that the Court will stand by its previous decisions in future cases. On the other hand, stare decisis was violated all the way back when Janus v. AFSCME was decided, when the Court began to balance away its previous decisions. By the time the Court started overruling substantive rights for the first time when Dobbs v. Jackson Women’s Health Organization overruled Roe v. Wade, the Court already was extending an ad hoc “precedent” to overrule precedent symbolized by Janus.

By this time, Kagan had already been hard at work developing her now defunct line of “supercharged” statutory stare decisis. This line appears to be rooted in Justice Kagan’s 2014 decision in Michigan v. Bay Mills Indian Community, where she opined that “stare decisis is a foundation stone of the rule of law.” In 2015, she decisively expanded upon Bay Mills in Kimble v. Marvel Entertainment.

The deal Kagan tried to make with more radical members of the bench was especially apparent in Ramos v. Louisiana, in which Kagan joined Justice Alito’s dissent that began: “The doctrine of stare decisis gets rough treatment in today’s decision.” In Alito’s majority opinion in Callais, he wrote that Kagan’s dissent “wraps itself in the mantle of stare decisis,” but “is unabashedly at war with key precedents.” Alito emphasized Kagan’s hypocrisy, which he himself undoubtedly encouraged behind closed doors in cases like Ramos, to justify his own more hideous and shameless self-destroying hypocrisy.

Here is where Milton seems to throw up his hands and say, wow, these people are blind to their own contradictions. Perhaps all are hypocrites, and none may be spared this cancer of the mind. Or, maybe Milton was describing how Satan does his work so well, by playing on blind spots humanity purposely maintains for its own reasons.1

The fight over who is more hypocritical, Alito or Kagan, seems to be a race to the bottom instigated by those who want to maximize the Court’s self-degradation. Justice Gorsuch threw fuel upon this fire in Learning Resources, Inc. v. Trump (the Tariffs Case), where he wrote a concurrence that seemed to run roughshod over every other colleague he has on the bench. In that case, Kagan pushed for more judicial power to review major questions according to ordinary tools of statutory interpretation, while Alito joined Kavanaugh’s opinion that apparently would use major questions doctrine to fortify what appears to be Presidential overreach in a way that seems to directly contradict their previous decision in West Virginia v. EPA.

Major questions doctrine itself is a new line of precedent that appears to stave off a complete eclipse of judicial power to review especially controversial actions of the President. According to secret Supreme Court memos leaked by the New York Times, it appears that Chief Justice Roberts masterminded this basis for review whenever he felt that the dignity of the Court itself is challenged by the President. At the same time, Roberts’ decisive use of the shadow docket to expand major questions jurisdiction on an ad hoc basis rather than to enforce the decisions the Court already made in its merits docket seems to be candidly political in itself and a potentially unreviewable violation of the Due Process Clause.

In the past, law students were taught that no Court would ever act so unreasonably. We were told that if there were any holes in the judicial structure, the reasonableness of judges could be counted upon to avoid any real damage to the institution. Under America’s almost religious faith in judicial reason, Presidential and Judicial overreach spiked according to unitary theories of federal power that presumed each branch of government has no duty of loyalty to the other branches whatsoever.

Yet, hypocrisy is anything but invisible in this storm of constitutional controversy. The real contrast in judicial character that materializes out of these dealings is between common law lawyers and legal positivists. Those crying most loudly about hypocrisy tend to be legal positivists who are trying to position themselves to grab power,2 which appears to be why Alito and Kagan seem to be constantly at each other’s throats over who is more hypocritical about their application of stare decisis.

However, for the common law lawyers, stare decisis has its place in a greater context of common law maxims and principles. The common law lawyer’s perspective is indispensable where stare decisis becomes completely inverted as in Dobbs, which extended Janus as an anti-precedent precedent rather than keeping Janus a one-and-done ad hoc decision. Of course Dobbs needs to be overruled, but it needs to be overruled to protect and revive the common law, which would not require the Court to spite stare decisis when it overrules Dobbs.

Legal positivism, which is the idea that all law is man-made, is designed to maximize the law’s potential by throwing away all constraints that judge’s anciently put upon the laws, including stare decisis.3 When Justice Kagan tried to stabilize legal positivism by supercharging stare decisis in the context of statutory (i.e., man-made) authority, she necessarily lost the common law context in which stare decisis exists. Kagan’s ceding of a legal positivist ‘anything goes’ framework actually facilitated Dobbs and the general degradation of stare decisis by making the common law seem as though it were only another version of man-made law so that judge-made ad hocery could be extended through it in Dobbs as though the common law could be anti-common law.

In other words, the hypocrisy at the bottom of Kagan and Alito’s hideous embrace of each other in Ramos4 was that both Kagan and Alito disrespected the common law context of stare decisis. For common law lawyers, stare decisis cannot be an ad hocery governed by passing Mathews v. Eldridge balancing tests, but its principles of judicial stability and fairness necessitate the overruling of certain precedents from time to time — especially those that degrade the common law and stare decisis itself. It is not hard to find the cases that the Court should overrule according to the common law’s principles of stability and fairness as they tend to stick out in what some scholars call The Anticanon.

Several antebellum cases that caused the Civil War should be explicitly overruled, including Dred Scott v. Sandford and Prigg v. Pennyslvania. Overruling these cases should inspire the subsequent overruling of the Slaughter-House Cases and many other cases in Slaughter-House’s progeny, including Bradwell v. Illinois and Plessy v. Ferguson. Justice Holmes’ decision in Buck v. Bell should explicitly be overruled along with its progeny of ad hoc cost benefit balancing cases including Mathews v. Eldridge, Stone v. Powell, and United States v. Brignoni-Ponce.

All these legal changes can be done by overruling precedent, as the Court did to Bowers v. Hardwick and Olmstead v. United States, according to principles of fairness and justice that stare decisis supports. Those shouting about hypocrisy tend to opine about how stare decisis is not a suicide pact, but characterizing the citation of stare decisis as a potential decision to self-harm is a fallacious argument appealing to emotions and making a straw man, apparently to justify a complete departure from the common law. For judges who overrule cases can and should justify themselves according to the underlying common law principles of stare decisis, not by giving reasons for exiting common law adjudication altogether.

Again, Ramos provides the proper lens to expose Kagan and Alito as contrarian siblings in hypocrisy, appearing to defend a very similar position of legal positivism while disputing the results. Ramos was about the common law requirement of a jury. In Apodaca v. Oregon, the Court departed from this common law requirement according to the democratic ideal that a people of a State can decide their own way and depart from common law at will.

In order to return the Court to stare decisis, and away from man-made efforts to modulate or depart from the common law, the Ramos Court overruled Apodaca. Clearly, Ramos invoked common law requirements mandated by the U.S. Constitution to overrule Apodaca, which means that man-made efforts to secure the common law in the U.S. Constitution have a central, preemptive place in the U.S. system of law. However, public participation in the choice to have a common law system does not paradoxically make the U.S. system anti-common law as legal positivists seem to infer.

The common law calculus at work in Ramos was not arbitrary. It did not allow for the ad hocery of Janus to upend abortion rights, which was emphasized in Dobbs’ reliance on Justice Kavanaugh’s Ramos concurrence. Justice Gorsuch’s common law based overruling of Apodaca in Ramos was not extended in Dobbs, because Dobbs did not overrule Roe v. Wade in order to return to the common law. Rather, Kavanaugh’s balancing test taken from Janus in Ramos was a further departure from common law into arbitrary ad hoc decision making that Justice Powell was most known for developing post-Buck in Mathews and beyond.

Justice Gorsuch’s hypocrisy was not invisible either. He both decried and applied balancing tests. All the defenders of Casey v. Planned Parenthood and Roe v. Wade’s use of balancing tests land in the same hypocrisy that began when Buck v. Bell extended Jacobson v. Massachusetts to sterilize women against their will. Justice O’Connor tried to defend it in her University of San Diego article that praised Justice Holmes’s Hegelian contradictions, but Holmes is no longer as defensible as he once seemed.5

But a common law lawyer, like myself, can follow the writings of Suffragette Matilda Joslyn Gage to find the common thread in the rights of life defended by Lord Coke in an earlier time to avoid hypocrisy.6 The former Puritans, including Rhode Island founder Anne Hutchinson, liberally used abortifacients to “bring back the menses” that are now being decried as if they were tools of murder by the current Puritans of America.7 Their arbitrariness is written throughout history, in one place making progress, and in another hanging witches and murdering Pequots.

John Milton was a Puritan, and he thought hypocrisy was invisible. Perhaps, as Octavio Paz would later observe in Mexico,8 there was something in the positivist way the Puritans defined the law that blinded them to their own contradictions.9 But to those who were and are oppressed by them, and to any who reject their man-made attempts to be God through sheer willpower, their hypocrisy is clear.10

But this is not the end of the story, because Anne Hutchinson and Roger Williams escaped from Puritan Massachusetts with their followers to found Rhode Island on principles of freedom of religion and speech that would later be codified in the First Amendment. Standing upon these freedoms of mind, Phillis Wheatley disagreed with Milton’s hypocritical misogyny, but still claimed the platform Milton made for women to say what she wanted to say instead. Thus, she baptized her lips, in the words of Lauryn Hill, by mimicking Milton’s style and accepting his terms while remaking and renewing every meaning he intended until all women were made as equals with men, especially regarding the freedom of their minds.11

Thus, I must add, that where Kagan and Alito err as Milton erred, I do not seek their destruction,12 but only to re-say their words in baptized form so that they actually support the common law. They both still appear to defend stare decisis even as their character betrays a lack of common law devotion. So it may be wise to do as Wheatley would do and take their defenses of stare decisis as permission to continue expounding the common law.

Wheatley’s progeny of artists and survivors in America have developed a complex strategy of double-speaking back to bad men. The latest, best example of how this strategy can be deployed successfully in Court was Kesha Sebert’s ringing success in the highest Court of New York in her case against her alleged abuser Dr. Luke. Despite several complications and difficulties, Kesha managed to separate herself from Dr. Luke and remade herself like a phoenix from the ashes.

Such an artist turns the hypocrisies of their abusers into a canvas she exploits for her own benefit. This strategy is not hypocrisy, but it may be one of the reasons Milton felt as though hypocrisy walks invisible. Since survivors are left to piece together the artificial binaries that broke the minds of their oppressors, black and white, man and woman, their answers back to hypocrisy can be taken as a ceding of ground even as they are standing their ground.

The fights legal positivists have between themselves over power will fall away eventually. What matters is what we do with the rubble they leave behind after their rage and despair is spent. It is not hypocrisy to expound the concepts hypocrites developed previously by baptizing your lips in Wheatley’s style, and it is not two-faced to speak back double-voiced to a two-faced system run by some of the most hypocritical people in the land.13

No. It is courage in the face of adversity to speak in the twisted words of your adversary. It is being the rose that grew from concrete. So let us imagine anew our roots sinking deep into the most impossible hard places in American society to create timeless beauty. And let us draw consolation from the poet’s marvelous verse that hails our existence here, in these very times and among these very people: “Long live the rose that grew from concrete when no one else ever cared.”

Yours Cordially,

Joshua J. Schroeder, Esq.

Disclaimer: The author is directly affected, in his legal practice, by the laws and policies challenging and defending independent lawyering addressed in this post.

Dear Reader,

For those who believe that an indigent, new citizen, non-white mother cannot become a real estate mogul by offering her professional services to Californians, think again. For Biddy (“Bridget”) Mason, who was a Black woman slave taken into California — a free state — by her Southern-Mormon masters from Mississippi by way of Utah, eventually became a wealthy landowning Angelino. But first, Ms. Mason had to overcome a corrupted lawyer, who apparently took a bribe from her master, to win her habeas corpus case to free herself, another Black woman named Hannah, and their several children.

Though Ms. Mason’s economic prowess is generally the focus of most studies about her, the case she brought in Los Angeles, to free herself and many others, has special significance in today’s fraught legal context. In her case, Mason v. Smith, Ms. Mason’s lawyer moved the court to dismiss her writ of habeas corpus in exchange for an apparent bribe of a few hundred dollars. Her lawyer seems to have argued that the money would have made Ms. Mason’s life better in Texas, where her masters wanted to legally make her a slave again after moving her to live in California where the laws already made her a free woman.

Judge Benjamin Hayes (sometimes spelled “Hays”) would not have it. He decisively moved on his own motion against Ms. Mason’s lawyers who sold out their clients’ paramount interest of securing their freedom in California.1 Citing to California’s kidnapping statute, Hayes implied that Ms. Mason’s masters were in the process of criminally kidnapping her by force or fraud, even stooping to the corruption of bribing Ms. Mason’s lawyers to dismiss her case.

In response, Judge Hayes implicitly extended the 1772 English freedom suit, known as Somerset’s Case, by essentially holding that California was as free as England by law. Even more interestingly, Hayes cited to an 1824 Louisiana Supreme Court case, Lunsford v. Coquillon, that appeared to uphold the principle that slaves were once free, always free that expanded upon the ruling of Somerset, at first, in the American South.2 Thereby, it appears that Southern Courts invented this principle of freedom more broadly than Dred Scott v. Sandford misleadingly implied when it referred to Missouri’s compromise as though Missouri’s freedom suits did not have a basis in law upon which the other Southern States generally concurred.

The scandal of Dred Scott’s Hegelian reading of the Declaration of Independence’s promise that all men are created equal to mean that not all men are created equal was underpinned by many layers of illogical misrepresentation. The least of which was that Dred Scott used the Fifth Amendment to strike down the Missouri Compromise, which was already then repealed. Thus, Chief Justice Roberts’ citation of Dred Scott’s use of the Fifth Amendment as a warning of a fundamental problem with expanding upon substantive rights in Obergefell v. Hodges was a complete misfire, because the error in Dred Scott was jurisdictional rather than substantive as there was no case or controversy to decide regarding the already repealed Missouri Compromise.

However, the brunt of Dred Scott’s errors seem to have originated in the Supreme Court of Missouri’s misrepresentation, in Scott v. Emerson, that Justice Story approved of Lord Stowell’s decision in The Slave, Grace. In The Slave, Grace, Stowell proposed a Hegelianism that would upend the Americans’ once free, always free precedent for a once slave, never free alternative along the lines of Le Louis’s equally illogical Hegelianism of the free trade in human flesh. Stowell’s alternative subversion of Somerset was implicitly embraced in an awful Mississippi decision, Leech v. Cooley, that characterized all free Black Americans, including Solomon Northup, as mere denizens rather than full citizens of free States and of the United States.

On the contrary, though Story received Stowell with politeness, he never approved of The Slave, Grace and actually opposed it and Le Louis in his opinions in La Jeune Eugenie and United States v. The Amistad. However, Justice Story clearly erred in Prigg v. Pennsylvania where he attempted to extend his idea of plenary power doctrine from his dissent in Houston v. Moore to absolve a slave catcher of his crimes in Pennsylvania. Story’s error solidified into the basis of Chinese Exclusion during the postbellum eugenics era, and Story’s Eleventh Amendment-based plenary power ideology remains with us today as the constitutional foundation of modern Immigration Law.3

President Trump openly defends plenary power doctrine by attacking pro bono immigration litigation that questions whether the Immigration Law unconstitutionally suspends habeas corpus. But Trump also claimed a unilateral power to enact immigration laws through presidential papers dating back to his first term as President that reporter Lesley Stahl properly rejected as clearly absurd when he tried to assert it in her presence.4 Trump’s attack on litigation by citing to Congress’s laws to defend him from litigation brought by immigrants is belied by his attack on Congress’s law in Trump v. Barbara as though his transgressions of the law do not waive his invocation of the law to destroy jurisdiction, which recently caused an unprecedented spike in immigrant habeas corpus litigation.

Judge Hayes acted within a similarly fraught period involving substantially the same constitutional principle immigrants are still suffering under. In Hayes’ opinion justifying his grant of Ms. Mason’s habeas corpus writ, he explicitly remarked upon a slippery slope that the Court would spiral down had he granted Ms. Mason’s lawyers’ motion to dismiss the case without notifying their clients. Hayes emphasized his independent power to extend relief to Ms. Mason despite her lawyers’ malpractice. In the end, Biddy Mason’s lawyers feared her masters ire or else they were corrupted by greed to subvert legal ethics against California law.

But, perhaps, they should have feared becoming the heel of Judge Hayes’ decision to grant Biddy Mason’s writ over their failure to argue the case. Today President Trump’s issuance of Executive papers to target litigation and litigators he doesn’t like asks the general question of whether American lawyers will surrender their clients’ interests to please the government. But the answer, should lawyers abandon their clients to please the President and to preserve their finances, was already made in Judge Hayes’ Los Angeles Courtroom where Hayes decided that granting such lawyers an easy exit from defending their clients’ interests in securing freedom from kidnapping and removal would be a travesty of justice.

The prescience of Hayes’ opinion to some of today’s most heated controversies is remarkable. In fact, Associate Justice of the California Supreme Court Goodwin Liu recently gave a keynote address at the 2026 commencement at UCLA School of Law that roundly addressed the structural prescience of Hayes’ decision to grant habeas corpus upon grounds of judicial independence without naming the case. Therein, Liu remarked upon the President’s attack on the practice of law in the United States by remembering John Adams’ reasons for defending the Red Coats according to his noble conviction that “‘counsel ought to be the very last thing an accused should want in a free country.’”

Liu drew lines from the founding idea that independent lawyering was a mark of free government to real lawyers who currently defend unpopular clients in court. Liu urged that “the independence of the legal profession, the independence of lawyers and judges, is vital to the fair and impartial administration of justice.” He concluded that judicial and lawyerly independence “is under stress today,” and issued a challenge to the rising J.D.’s of UCLA before him “you must stand strong and defend it.” Then he recited a quote from the late Associate Justice William O. Douglas’s speech A Challenge to the Bar given to the American Law Institute in 1953 as follows:

“History shows that governments bent on a crusade, or officials filled with ambitions have usually been inclined to take short-cuts. The cause being a noble one (for it always is), the people being filled with alarm (for they usually are), the government being motivated by worthy aims (as it always professes), the demand for quick and easy justice mounts. These short-cuts are not as flagrant perhaps as a lynching. But the ends they produce are cumulative; and if they continue unabated, they can silently rewrite even the fundamental law of the nation.”5

But, it appears, Justice Liu did not need to cast his gaze all the way to Washington, D.C. to find the sprouting of California’s older dedication to this principle in Los Angeles, when it was a fledgling metropolis. As wonderful as Justice Douglas’s defense of judge and lawyer independence was, he spoke largely in dissent during the McCarthy Era and today the state of the federal government appears to be even more uncertain. Therefore, it is auspicious that Justice Liu might also rest his defense upon Judge Hayes’ reported opinion in Mason v. Smith about the paramount importance of not only lawyerly and judicial independence, but also zealous advocacy.

It is true that the Reconstruction of the United States after the Civil War largely depended upon the federal government to unite even the former Confederate States as one nation dedicated to principles of equal liberty and equal justice. But where the States did justice and acted rightly, as California did from time to time during the Civil War and prior, there are moments of State-led defenses of uniting principles that ought to be celebrated — for example, the antebellum decision in United States v. Ritchie regarding the fate of land owned by Chief Sem-Yeto of the Suisun people, whose Christian name was Francisco Solano, and who was the namesake of Solano County, California. In fact, as Judge Hayes noted, there was at least one case from Louisiana that should be celebrated despite its existence among several travesties and atrocities that compose the heinous and unjust chattel slavery era.

As such, despite the massive errors of California, symbolized by its first Chief Justice Serranus Hastings who led genocidal expeditions against the Yuki people, there are precedents worth protecting here. America’s lack of resolution for betraying Reconstruction to certain failure, currently symbolized by President Trump’s repeated success, may confirm why federal calls like Justice Douglas’s call to principles of lawyerly independence are presently failing. But the States should not hesitate to face their own failings to see if there are bases for uniting principles in their own respective histories. Here, in California, Biddy Mason set forth such a foundation worth remembering in a case that mandates the zealous advocacy of lawyers for unpopular clients, in difficult cases.

As commemorated by the Biddy Mason Foundation in Los Angeles that maintains a museum in Ms. Mason’s honor and services Los Angeles foster children in her name, Black Californians have always shown us how to celebrate survivals like Biddy Mason’s. To find levity and even felicity in living on through trial and tribulation is not hypocrisy, but it is the throbbing pulse of the jazz and blues that made their debut, first, in the heart of the South. These divinely inspired sounds of survival have reached us in the West, and, in Biddy Mason’s case, they seem to have hardened into a firm foundation for the independent administration of justice so that we can celebrate the continued survival of freedom in California without fear or hesitation about what fate might befall the rest of the nation, even now, when the way is especially dark and uncertain.

Yours Cordially,

Joshua J. Schroeder, Esq.

Dear Reader,

In The Merchant of Venice, William Shakespeare invented a prototype of the modern cancel culture queen in Portia: morally eloquent in public, but ruthless in orchestrating Shylock’s social destruction. Disguised as a lawyer in a Venetian Court, Portia managed to transform Shylock’s clearly repugnant prayer for a pound of Antonio’s flesh into an even more repugnant court order stripping Shylock of all his wealth, estate, life, and religion. Portia symbolizes the ability of certain talented individuals to wield the passions and prejudices of others to achieve public acclaim and devotion, as though Christ-like, without sacrificing their uncharitable realism.

On September 15, 2023, Clare Malone tried to channel her inner Portia by publishing Hasan Minhaj’s “Emotional Truths” in The New Yorker. Soon after its publication, Minhaj reported that his offer to become the next host of The Daily Show was revoked. However, Malone’s report lacked the cardinal ingredient of genuine, Portia-inspired cancel culture, i.e., a substantial morally repugnant character flaw that is attributable to Minhaj.

Unlike Shylock, Minhaj never demanded a pound of proverbial flesh to deserve Malone’s scrutiny. Though merciless and hypocritical in her legal arguments, Portia could still claim she was reasonably defending the life of another from potential ruin. But Malone impugned Minhaj for what? For being a hack in an era that celebrates hacks? What justification could Malone possibly claim for attacking and potentially ruining Minhaj by, likely, misusing an interview where it appears Minhaj simply explained how comedy works to the reporter.

It was, perhaps, Minhaj’s naiveté to give an interview on the basics of comedy to a reporter apparently willing to distort Minhaj’s explanation of strategies in comedy before the American public. Yet, the joke was on Malone, as her report participated in the very “emotional truths” that Minhaj seemed to address with her. For, it appeared, the “emotional truths” that Minhaj generally described were merely the crowd’s imputation of stereotypes and prejudices upon Minhaj that are completely unavoidable for any such stage performer.

Eventually, Malone’s attempt to punish Minhaj completely fell apart. Minhaj’s strategic choice to continue navigating public stereotypes and prejudices as “emotional truths,” rather than excoriating the public for projecting their stereotypes and prejudices upon Minhaj facilitated his persistence as a great American comedian. For Comedy requires a performer’s grace to humbly allow an audience to project their own emotional truths upon a performer so that the audience can start to work out their own issues through laughter. This means a genuine comedian distinguishes himself from the hacks by putting his ego about who he is aside to help others figure out who they are.[1]

The great comedienne Hannah Gadsby clearly explained these boundaries of comedy in her historic Netflix special Nanette. Where Gadsby decided that comedy no longer served her, in Nanette, she candidly abandoned the medium of comedy to carry on a polemical masterclass to better define comedy in the modern era. In my opinion, Minhaj’s projects and his character fit squarely inside of Gadsby’s definitions and elucidations of the medium of comedy, which means that Malone’s critique crossed, not only Minhaj, but Gadsby as well.

Malone’s attack not only crossed the Rubicon laid out by Gadsby as to the medium of comedy by refereeing Minhaj’s objectivity, but she also seemed to cross her own genre of cultural criticism by positioning her report as fact rather than opinion. For the late queen of literary take-downs herself, Joan Didion, admitted that she reported her emotional truths about facts and circumstances to address then popular fears of impending dooms in America. The bulk of Didion’s writings gave catharsis to an America that was clearly uncomfortable with cultural and societal change. Malone did the same, but without honor, by giving voice to the very emotional truths Minhaj addressed about the public prejudice that judged brown children of immigrants raised in rural California as simply incapable of Minhaj’s excellence while pretending she did not.

Unfortunately, Malone’s takedown appears to have punished Minhaj for explaining the truth’s role in the creation of laughter as the foundation of comedy, such that when a crowd bursts into peals of laughter it reveals something true about the crowd. The principle of emotional truths being more important to the truth than the fictional or made-up theatrical premises that evoke a crowd’s emotions seems to trace back to antiquity where Cicero himself respected such signs as nature’s voice (more on this below).[2] Perhaps modern Americans are only okay with reporting emotional truths as a form of catastrophe, as Didion always seemed to do; or, maybe, punishing Minhaj was therapy for certain white Americans who do not find Minhaj funny.

In Nassim Nicholas Taleb’s interesting book The Black Swan, he attempted to pathologize the seeking of knowledge as a form of therapy. Thus, Taleb frequently decried the error of Platonizing knowledge, which was a fancy way of critiquing reductionism. However, by listing out the knowledge Taleb does not know, Taleb appeared to ironically therapize himself in practically the same way.[3]

Like Taleb’s tendency to criticize others for indulging in a self-soothing exercise he also indulged, Malone appeared to skewer Minhaj for taking advantage of Americans seeking knowledge about race and social justice topics to garner fame. As Taleb exhaustively explained in his book, humanity is designed to not only demand, but to require, narratives reduced from the whole truth to make knowledge comprehensible. We naturally lose the whole picture in the ordinary processes of learning and remembering, as explained by Taleb.

Didion, herself, expanded upon the role of disillusionment in the pathways of survival she pioneered, which paradoxically increased her sense of security as she prognosticated about the doom of nearly everyone around her. Even if Didion was a drudge for smothering hope in America, her development of survival strategies were real and good as explored in Lulu Miller’s path making book Why Fish Don’t Exist. Surviving depression and anxiety is potentially an absolute good, which could require a “year of magical thinking” as Didion described in her book about wrestling with grief and depression (though Didion remained a drudge for not admitting that her friend and rival, Eve Babitz, was right all along about human beings needing levity to thrive).

The overall revelation from Taleb, as with many others from our near and distant past, is the sovereign role of the heart in matters of the mind. This revelation is apparent in Taleb’s book, but is by no means a breakthrough. There are several sources that trace back through Christianity and even before Christianity that propose that love is lord of heaven and earth, which may have originated in Cicero’s report of a crowd’s reaction to the expressions of love between two men that proved to him that natural love is the sovereign leader of the human mind.[4]

The Ciceronian-Christian poet of the American Revolution, Phillis Wheatley, characterized Love as sovereign Queen-Goddess over Reason, her subject-votary, in Thoughts on the Works of Providence. Simultaneously, famed Scottish Economist Adam Smith expressed the same idea in his Theory of Moral Sentiments, which John Adams quoted at length in his Revolutionary tract Discourses on Davila. Later, Bertrand Russell and Hannah Arendt extended these ideas into the secular, writing passionately about the central role of natural human love in the realm of mind.

Finally, Daniel Kahneman and Amos Tversky proved this reality through scientific experiments that showed humans have two modes of thinking, fast and slow. But again, their research was misreported in yet more self-contradicting works like Nudge and Noise according to the very errors of thinking they themselves proved. Taleb, Cass R. Sunstein, Richard Thaler, and other Kahneman-Tversky fans paradoxically expressed their own biases for reason over emotion that caused them to attempt hacking emotions with Kahneman and Tversky’s research to force reasonable outcomes.

These corruptions of human reason appeared to arise from emotional corruptions that Adam Smith described as humankind’s tendency to sympathize with the rich and powerful, while disdaining the poor and infirm. In Taleb’s book and in the works of Sunstein, Thaler, and even of Daniel Kahnemen himself, seeking to apply their knowledge of the limits of human reason, these authors seemed entirely preoccupied with justifying the rich and explaining their errors so they could perfect the status quo.

In a telling passage, Daniel Kahneman himself joined Sunstein and French Economist Olivier Sibony to reject Portia’s plea in the Merchant of Venice as fundamentally unfair, and therefore unjust.[5] This analysis was, itself, extremely reductionist and portended a self-soothing end for Kahneman who was always uncomfortable with irrationality, and, likely, biased in favor of the Jew that Portia degraded with her argument. Thus, to beat Portia at her own game of anti-Semitism, Kahneman unwisely sacrificed the emotion of compassion Portia sported as though her position was compassionate, when the actual problem with Portia’s plea was its lack of compassion and hypocrisy for sporting an uncompassionate position as though it was.[6]

In an important law review article, former Chief Justice of the Arizona Supreme Court Rebecca White Berch explained why Portia’s plea from the Merchant of Venice should be regarded as at least as important to American law as Joseph Story’s Commentaries.[7] The prejudice and anti-Semitism of Portia did not take away the justice of her convictions against the apparent cruelty of Shylock. In fact, Portia seemed to exact perfect fairness from a Venetian Court by winning her pound of flesh in the exact style Shylock claimed it from Antonio, which signaled the inequity of treating fairness as if it were automatically justice.[8]

The basic problem with lifting fairness to the level of justice, which the Merchant of Venice seems to poke fun at, is that injustice can also be administered fairly. Slavery can be enforced equally as to every person as feudalism required in ancient Europe. Dystopias can arise in the name of Utopia as they did in Russia and China.

As such, the flaws of Portia should be navigated by judges interested in administering justice rather than canceled. For cancel culture tends to bleed into areas where there was no credible charge of racism, bigotry, or misogyny, as occurred in the case of Malone’s attempt to get the better of Minhaj’s “emotional truths.” Like potentially all children of immigrants in America, Minhaj was damned if he did and damned if he didn’t talk about his culture and upbringing (especially in a particularly racist part of California) and Malone offered Minhaj no quarter now that he was playing in the major leagues.

Perhaps, for human beings at least, there are only emotional truths as nature’s voice keeps speaking to us through laughter and tears. Some people dislike Minhaj and will think the worst of him. Following their emotional truth of hatred or jealousy, perhaps, they are obviously capable of weaponizing genuineness against comedy itself. But most of us will prefer to keep laughing than read a boring critique about why only “genuine” people deserve to make America laugh. And if Minhaj ever stopped making us laugh we would sooner change the channel to watch the latest episode of Hacks, or, at least, that’s what I would do, because Hacks being the best comedy on TV right now is my emotional truth, and I’m sticking to it.

Yours Cordially,

Joshua J. Schroeder, Esq.

[1] Anyone who performs comedy for something greater than themselves should seek to push themselves out of the way. Flannery O’Connor, A Prayer Journal 3 (2013) (“Please help me push myself aside.”).

[2] Cicero, De Amcitia 7.24 (addressing a theatrical expression of friendship love: “In this case Nature easily asserted her own power, inasmuch as men approved in another as well done that which they could not do themselves.”).

[3] Joshua J. Schroeder, Why Cost/Benefit Balancing Tests Don’t Exist: How to Dispel a Delusion That Delays Justice for Immigrants, 125 W. Va. L. Rev. 183, 228 (2022) (noting the therapy of collecting items of knowledge as a way to self-soothe when one is uncomfortable).

[4] Cicero, De Amcitia 7.24 (noting that a scene from Roman play where Orestes and Pylades fervently lay down their lives for the other caused throngs of Romans to rise with shouts and cheers, indicating to Cicero that this kind of self-sacrificial love is a true desire of humankind).

[5] Schroeder, supra note 3, at 258 (noting this passage from Noise on page 340).

[6] Daniel Kahneman, Olivier Sibony & Cass R. Sunstein, Noice: A Flaw in Human Judgment 340 (2021).

[7] Rebecca White Berch, The Merchant of Venice, Act IV, Scene 1, 10 J. Appellate Practice & Process 357, 363 (2009).

[8] Schroeder, supra note 3, at 258 (disputing the old claim that fairness is justice).

Dear Reader,

In Louisiana v. Callais, the Supreme Court subverted the Voting Rights Act to protect white supremacy. The Court did this by replacing its “‘one-person, one-vote ideal,’” with the racist colorblind ideal from SFFA v. Harvard that was distilled from Justice Powell’s standalone opinion in Regents of Univ. of Cal. v. Bakke. In effect, the Court ended Voting Rights Act litigation under Section 2 by completely inverting the Court’s previous precedents as though they always meant something opposite and inside-out from what we always thought they meant.

The joke’s on you America, Justice Alito appeared to boast in Callais as he channeled Justice Powell’s classic racism-by-ad-hocery from Bakke and other balancing test cases. The Callais opinion reads as though the one-person, one-vote principle was always a ruse. The Court’s inversion of Section 2 with SFFA’s colorblind racism was foretold in Grutter v. Bollinger and exposed as clearly racist and immoral in both Go Set A Watchman and The New Jim Crow.

To fulfill Grutter’s prophecy through SFFA, Callais subverted one-person, one-vote by deciding that racial redistricting maps cannot be justified by the compelling interest the States have in complying with Section 2. This means that Court orders to resolve racist gerrymanders are, potentially, themselves unconstitutional racial gerrymanders—a decision that appears to nullify Section 2 and the Equal Protection Clause itself as incapable of enforcement. Thus, Callais is also a direct threat to Cooper v. Aaron, because it implicitly denies the constitutionality of Cooper’s enforcement of Brown v. Board of Education as, itself, unconstitutionally racist.[1]

The hypocrisy of Callais lies in its use of politics to distinguish the result of Thornburg v. Gingles by paradoxically extending and modifying Gingles. According to Callais, if Black people voted Republican and simply wanted different policies or representatives within a single party, then the result would have been different. This subverted the very policy issue the Voting Rights Act was enacted to address by appearing to premise the legal protections of Black voting power in Louisiana upon whether they’re going to vote the “right” way.

As Dobbs v. Jackson Women’s Health Org. struck down abortion rights under the Fourteenth Amendment, the Callais Court similarly decided that the Fifteenth Amendment has a limiting, rather than expanding, effect on Congress’s legislative power. This effectively transformed the work of several legal scholars suggesting that Congress could read the Fifteenth Amendment’s delegation of “power to enforce this article by appropriate legislation” into a paper tiger. As noted in previous letters written to you, this is yet another tentacle of the Leviathan shaped upon the hideous decision in the Slaughter-House Cases that decided the Thirteenth, Fourteenth, and Fifteenth Amendments are limited to the purpose of ending race-based chattel slavery.

Callais usurped the legislative power by turning the U.S. Constitution into a hatchet to limit Congress’s power to necessarily and properly administer the government. It threatens to oust McCulloch v. Maryland, that wisely expanded Congress’s power with this liberal standard:

Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are Constitutional.

Callais entirely ignored Chief Justice Roberts’ standalone 1-4-4 opinion from NFIB v. Sebelius, that mirrored Justice Powell’s standalone 1-4-4 opinion in Bakke. Every Justice may, in future, change their minds about their previous opinions. But, here, Chief Justice Roberts contradicted his previous opinion without seeming to realize that he had done so according to the Court’s increasingly paradoxical anti-rights stance symbolized by Associate Justice Clarence Thomas.

In Dobbs, Justice Thomas, who is a Black man married to a white woman, lionized Slaughter-House via his opinion in McDonald v. Chicago as a basis for potentially revoking all substantive rights currently protected by the Supreme Court—including the right to marry interracially. The crux of Dobbs, however, was an ad hoc cost/benefit balancing test drawn from Janus v. AFSCME. The Callais Court similarly applied an ad hoc cost/benefit balancing rationale modified from Gingles to permanently distinguish Gingles in an exceedingly paradoxical fashion that appears to be modeled on Hegel’s mystical dialectic of extremes that approach the Absolute Idea.

As Bertrand Russell once remarked, in his Unpopular Essays: “Hegel’s philosophy is so odd that one would not have expected him to be able to get sane men to accept it, but he did.” Justice Alito’s paradoxical and absurd opinion in Callais provokes a similar conclusion. Yet, as Michelle Alexander elucidated in The New Jim Crow (drawing on Martin Luther King, Jr.’s Strength to Love), Callais’ embrace of judicial chaos may come from the same peculiar psychological state that the oppressors of Jesus Christ had of both knowing and not knowing what they did.

When Roe v. Wade, and several other rulings construing the constitution were destroyed by the Court through Janus’s cost/benefit balancing test, some, like Justice Kagan, took solace in the face that this toxic tranche of cases might have been distinguished from statutory precedent. For the Court had referred to its rulings about statutes as protected by a “superpowered form of stare decisis” that composed a “nearly impregnable . . . shield” that only a “superspecial justification” could overcome.[2] Justice Kagan managed to vindicate and develop this special form of stare decisis in several key cases, perhaps, culminating in Allen v. Milligan to specifically protect the Voting Rights Act.

Therefore, it was a particular blow to Kagan’s jurisprudence when the Court ended Allen’s supercharged version of stare decisis in Callais on similar arbitrary ad-hocery as Dobbs. The Court disagreeing with itself about the meaning of statutory text foolishly gives the Court’s critics a leg to stand on when they claim the Court is usurping Congress’s power by nullifying its laws.[3] After Callais, the Court’s own previous decisions can be cited to support the rising claims of the Court’s illegitimacy as the government’s only unelected branch.

If Congress and the President cannot count on the Court to consistently interpret the laws and regulations they make, they may seek to reduce the reviewing power the Court has to protect the rights of Americans. Worse, it appears that some of the more radical members of the Court itself may want to provoke the other branches to narrow their authority to protect the substantive rights the Court traditionally secured through judicial review. Following the arbitrary timeline set in Grutter,[4] many on the Court appear to actually believe that securing racial equality in America runs against the foundations of judicial review, rather than being a pillar of judicial review to address the nation’s vestiges of race-based chattel slavery.

Now that the proverbial chickens of Grutter have come home to roost, all those who claimed Shelby County v. Holder nullified the Voting Rights Act are completely vindicated. Back in 2013, the Shelby County Court seemed to suggest these critics were blowing things out of proportion as litigants could still sue under Section 2 to correct any actually deficient voting maps. Without any sense of shame, the Callais Court practically destroyed Section 2 as a basis for reviewing racist gerrymandering, solidifying the original criticism that Shelby County nullified the Voting Rights Act.

Ultimately, Callais severely weakens Cooper’s holding that requires the States and the Executive Branch to refrain from nullifying the Court’s rulings. If the States, Congress, and the President cannot count on the Court to remain consistent about its previous opinions, as Callais symbolizes, then more cases may be brought, like Whole Woman’s Health v. Jackson, to get orders that effectively nullify the Court’s previous opinions before they are even overruled. In this way, Callais improperly tempts future litigants to race to fait accompli in the shadow docket rather than helping the Court develop the law in the merits docket.

As I, perhaps too gently, noted in previous scholarship regarding Dobbs,[5] Justice Kagan’s apparent hope to distinguish Dobbs away through Allen and its predecessors was always a pipe dream. In Janus, and its progeny, the Court already demolished stare decisis by inventing the monstrous prospect of anti-precedent precedent. In Callais, the Court’s feudal Leviathan gained a powerful tentacle with which it may suffocate American democracy, but it is not different in kind to the rest of the beast.

The Supreme Court will only have so many cases where it could hear arguments that seek to challenge the beast itself. Justice Kagan’s attempts to incrementally correct the Court’s stare decisis errors by starting from a strong position and building outward from there actually forfeit her chance to strike at Leviathan in the ever-present now. There are only so many more cases that will arise before the Court’s departure from the common law maxim of stare decisis for what appears to be feudal slavery causes the nation to completely succumb to a tyranny of the Court’s own making.

Yours Cordially,

Joshua J. Schroeder, Esq.

[1] Long forgotten is Justice Stevens’ warning in Parents Involved in Community Schools v. Seattle School Dist. No. 1, 551 U.S. 701 (2007) (Stevens, J., dissenting) about the “cruel irony in The Chief Justice’s reliance on our decision in Brown v. Board of Education,” because, obviously, “the history books do not tell stories of white children struggling to attend black schools.”

[2] Louisiana v. Callais, slip op. No. 24–109, at 35 (2026) (Kagan, J., dissenting) (quoting Kimble v. Marvel Entertainment, LLC, 576 U.S. 446, 455–56 (2015); Minerva Surgical, Inc. v. Hologic, Inc., 594 U.S. 559, 579 (2021) (Alito, J., dissenting)).

[3] Id. at 31 (“The majority has thus nullified Congress’s decision to provide a remedy, without proof of intent, for state action that “results in” a minority group’s lesser opportunity “to elect representatives.”).

[4] Grutter v. Bollinger, 539 U.S. 306, 343 (2003) (“We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”).

[5] Joshua J. Schroeder, Rethinking Rights in a Disappearing Penumbra: How to Expand Upon Reproductive Rights in Court After Dobbs, 54 N.M. L. Rev. 15, 19 (2024).

Dear Reader,

Feminist scholars recently shined a light on the role of Hobbesian prophets in the rise of dictatorships. Prophets, or charlatans styled as prophets, were at work behind the rise of Oliver Cromwell, Maximilien Robespierre, and Napoleon Bonaparte. Many of the prophets were women like Suzette Labrousse, whose mystical role inspiring political change in revolutionary France was not entirely unlike the role the current U.S. Supreme Court seems to be filling today.

There were many others, including Catherine Théot, Elizabeth Poole, and Mary Pope. Some, like Anna Trapnel, eventually turned their considerable political powers against the dictators they once supported, perhaps, reminding us of the mercurial fictional character Aunt Lydia from the celebrated books of Margaret Atwood. Thomas Hobbes anticipated the threat such women posed to his favored government of absolute monarch by attempting to cede their powers to the dictator himself by calling him “the sovereign prophet.”

At the bottom of Hobbes’s struggle with the, largely female, prophetic powers of his time was a sheer realist calculation about religious fanaticism drawn from claims of divine sovereignty. Hobbes likely considered prophecy a product of the general madness of all humanity (his diagnosis), which he tried to corrupt in service of his favorite form of government: absolute monarchy. Despite the regrettable beheading of Charles I, largely due to these prophetic pronouncements, the prophets of Hobbes’s time mostly served the political absolutism he preferred in Cromwell.

Louis XIV and Charles I’s divine right of kings was successfully challenged by several female prophetesses who claimed God’s sovereign blessing on themselves as female servants of the Lord. However, the very existence of King James II, who is the namesake of New York in America and primary architect of the infamous African-American Slave Trade, proved the limits of political-prophetic movements to make lasting change. It was not until the American Revolution that the British crown would be permanently disrupted when New York City, the seat of the British Empire and symbol of its many horrifying sins, was taken in open battle by Republicans who followed the mighty poetic pronouncements of New Yorker Ann Eliza Bleecker against tyranny that appeared in the humble form of art, rather than prophecy.

Many, like Bleecker, followed in the wake of Phillis Wheatley’s humble mission built upon her simultaneous veneration and correction of John Milton’s previous works. The ostentatious English prophets, including Milton, were abandoned in America for the humbleness of making an appeal to heaven in prayer. But the prayerful women who helped lead the American appeal, writing mostly in poetic forms, filled the same inspirational role as the former prophetesses held, but without committing the sin of presumption by violating Luke 17:1-2 and Revelation 22:18-19.

The American Revolutionaries never claimed authority from divine sovereignty the way that the English and French prophets had done to swear violence on monarchs. King George III was deposed in America according to nature, heaven, or God’s respect for the choice of the American people to depose the king according to their natural rights and liberties. As God respected the choice of the people of Israel to choose a King in Samuel, even though it was a sin, God respected the choice of the people of America to repent of this very same sin by casting off the crown of Great Britain on July 4, 1776.

The idea of American sovereignty, and its interaction with the religious while never establishing a religion or requiring worship of any kind is a singular contribution to the science of statecraft led by the Americans of 1776. The people are sovereigns, because God (or nature) made them that way,[1] and God (if he, she, or they exists in the first place) respects the people’s sovereignty as an aspect of people created by God or nature even unto sin and error, as the Israelites had exemplified to the eyes of the world time and again. In 1776, the Americans made a different choice that God respected according to the natural sovereignty of the people through their practice of humbly appealing their grievances to heaven and publicizing their grievances in the Declaration of Independence for the consideration of the world.

As Hannah Arendt later clarified, with affection, the Americans retained the manyness of the people in its idea of popular sovereignty that was corrupted in the Soviet Union and other Marxist and Leninist experiments.[2] Thus, when the American laws and constitutions say “the people,” they simply mean the people in their individual and group capacities as natural beings created by nature and God.[3] As Arendt noted, the people’s majesty itself arose from their very manyness.[4]

As Communism and Socialism would later do, the British crown theoreticized the people as a giant mass with big capital letters: The People, The Mob, The Rabble, or the Peanut Gallery.[5] The most extreme of British royalists actually imagined The People as a giant monster called Leviathan who united as one man in the monarch.[6] One of these royalists was Jeremy Bentham who actually appealed to this one man to punish the Americans for daring to break away from the fold without permission.[7]

Bentham’s appeal did nothing, because human beings are individuals who do not have a way of uniting as one man except in their imaginations.[8] The great and terrible Leviathan is like the Wizard of Oz: a boogie monster to chorale individuals into groups through fear and wonder. The Leviathan never was something a royalist could depend upon to keep the Americans in line, even if it could be used to enchant them with affection and fear as the Wizard of Oz did to all the munchkins of munchkin-land.

The French must have seen how Bentham appealed to the great monster in his mind as though it were sovereign without avail, and, yet, allowed themselves to be convinced by Bentham to repeat this error. Then, like psychopaths, they began chopping off their own heads in what is now known as the Reign of Terror. As the Americans knew, the French abandoned their better lights in the Baron de Montesquieu when they embraced Rousseau’s union sacrée according to Bentham’s original appeal to the one sovereign man that Thomas Hobbes called Leviathan.[9]

It is, apparently, psychopathic to keep repeating the same behavior while expecting different results. And, yet, a ridiculous pretender, who would be king, managed to take the Presidency twice. There are now talks of a third (unconstitutional) term.

But the pretender, himself, was never the source of the American pride and despair that put him in power. He was and remains only a symptom of these ancient sins of humanity that are remarked upon time and again by sages and philosophers in the West, beginning with Aristotle. The strategies of a Leviathan or Wizard of Oz to manipulate the feelings of the people to accumulate power merely theorizes that the vices of humankind are more stable than its virtues for world building and statecraft.[10]

In the end, the Americans confessed these vices of pride and dejection, despair and presumption, were inescapable realities of their hearts that disrupted their virtues of hope, humility, and magnanimity. But unlike Hobbes’s institution of an absolute ruler called Leviathan, they devised a system of separated powers to check these vices so that human virtues in government could survive, if not potentially flourish.[11] The form of government favored by the Americans was, therefore, a limited federal government with several limited State and local governments that aimed to maximize the freedom and choice of the people.

This system of separated powers seems to have put too much pressure on the judiciary.[12] Over the centuries, the judiciary faltered in its duty to unify the nation under one Supreme Court, first by nationalizing slavery in Dred Scott v. Sandford to cause a Civil War. Then, by extending Dred Scott in the Slaughter-House Cases to permanently undermine the limited nature of American government that led to the development of eugenics, Buck v. Bell, and finally Hitler’s plan in Germany.

Despite several obvious structural contradictions, the Court largely became a prophet of the absolute powers of Leviathan. In fact, the U.S. Supreme Court propagated our despair anew when the Nuremberg prosecutor, Justice Robert H. Jackson, appeared to suggest that the Court, rather than the people, creates the constitution in Brown v. Allen.[13] Emphasizing the paradoxical nature of this vein of potentially treasonous realism, the Roberts Court was recently inspired by it to upend stare decisis while announcing “rule[s] for the ages.”

The Supreme Court appears to have told us that it believes that it creates the constitution.[14] It apparently believes that the Court is the sovereign that gives form to national government, not the people. Therefore, the Court appears to be the first pretender to the throne of American sovereignty as a Hobbesian prophet tasked with dubbing the administrators of government with legitimacy.[15]

Every awful thing that led to Trump’s two-term presidency can be traced back to the Court’s populist advertisement of treasonous realism. Both Republicans and Democrats heard the Court pretending to the people’s power and believed that they had to capture it for their political ambitions to succeed. Back in the 1980s or even before, the Court’s usurpation of the people’s power to make and remake their constitutions was already perfected to generate the populist presumption and despair that created President Trump.

In his royalist tract, Leviathan, Thomas Hobbes observed that despair is merely another side of presumption; pride merely another side of dejection; and advocated that absolute royals should use this “Madnesse” among the people to “enrowle a legion.”[16] In the mid- to late Twentieth Century, Americans presumptuously took John Adams’ prescription for independent judging as an automatic cure for arbitrary power. The Court recognized the people’s indulgence of its power and scandalously misused it to gaslight the people with Hobbes’s insult of popular insanity to solidify its prophetic power into the future without respecting the popular indulgence.

But the era of presuming that the Court is always right is over. The people are presently realizing the pivotal part they had in facilitating the Court’s fractious course. They may choose to repent and do better, which may entirely upend the political plans of both the Democrats and Republicans for the Supreme Court.

The Supreme Court is a co-equal sovereign with the President and Congress,[17] but each co-sovereign is vested with the people’s sovereignty, held in trust according to the limits of a written constitution drafted and ratified by the people. The entire purpose of the Court was to be a non-political tribunal where the entire nation could peacefully settle its grievances before the country devolved into Civil War.[18] John Adams specifically defended the Court’s independence through life-tenure during good behavior, believing that political slant and bias could be avoided by structurally isolating the judges from the traditional levers of political control.

However, the Supreme Court failed to peacefully resolve the nation’s differences when it decided Prigg v. Pennsylvania and Dred Scott v. Sandford. Despite explicitly being characterized as a tyrant king by Chief Justice Taney in chambers, President Lincoln still dared to imagine that the fledgling nation could be born again. Eventually, the Thirteenth, Fourteenth, Fifteenth, and Nineteenth Amendments accomplished the rebirth of the American project, keeping the system of independent courts originally invented by John Adams.

Judicial independence is known to be the only original contribution to the science of statecraft attempted by the United States. It was one of the only things that the Americans devised through an original, positive development of the law to distinguish the American governments from others. It would, therefore, be a travesty if John Adams’s theory of judicial independence, as adopted nearly verbatim in Article III of the U.S. Constitution, is disproved by the Roberts Court through sheer unforced corruption of the bench with Hobbes’s natural religion of the divine right of the king’s prophets that John Adams himself decried in his Dissertation on the Canon and Feudal Law to justify the Revolutionary decision of the Americans to permanently separate church and state under the First Amendment.

Yours Cordially,

Joshua J. Schroeder, Esq.

[1] 1 James Wilson, Collected Works of James Wilson 445 (2007) (“The dread and redoubtable sovereign, when traced to his ultimate and genuine source, has been found, as he ought to have been found, in the free and independent man.”).

[2] Hannah Arendt, On Revolution 66, 250 (1990).

[3] U.S. Const. pmbl., explained by Chisholm v. Georgia, 2 U.S. 419, 455–56 (1793) (“In all our contemplations, however, concerning this feigned and artificial person [i.e., the State], we should never forget that, in truth and nature, those who think and speak and act are men.”).

[4] Arendt, supra note 2, at 93 (“The word ‘people’ retained for [the Americans] the meaning of manyness, of the endless variety of a multitude whose majesty resided in its very plurality.”).

[5] Chisholm, 2 U.S. at 462 (“The Parliament form the great body politic of England! What, then, or where, are the People? Nothing! Nowhere! They are not so much as even the ‘baseless fabric of a vision!’ From legal contemplation they totally disappear! Am I not warranted in saying that, if this is a just description, a government, so and justly so described, is a despotic government?”).

[6] Thomas Hobbes, Leviathan frontispiece (A.R. Waller ed., 1904).

[7] Jeremy Bentham, Short Review of the Declaration, in John Lind, An Answer to the Declaration of the American Congress 107, 118 (1776) (appealing to the British empire to “unite as one man, and teach this rebellious people, that to say the connection, which bound them to us, is broken, is not to break it”).

[8] Joshua J. Schroeder, A Court of Chaos & Whimsy: On the Self-Destructive Nature of Legal Positivism, 29 Cardozo J. Equal Rts. & Soc. Just. 663, 665 (2023) (noting that legal positivism cannot be reliably defined, because it is “a theory that facilitates a potentially unlimited number of imaginary experiments”).

[9] Arendt, supra note 2, at 150, 241 (noting that Montesquieu’s “role in the American Revolution almost equals Rousseau’s influence on the course of the French Revolution”); Jean Jacques Rousseau, The Social Contract 218–19 (Rose M. Harrington trans., 1893) (celebrating Hobbes’s combination of church and state and embracing the paradoxical nature of humankind).

[10] Hobbes, supra note 6, at 46–48 (proposing that absolute monarchy should be built upon a diagnosis that all humanity is reliably insane).

[11] U.S. Const. arts. I–III; see James Otis, Collected Political Writings of James Otis 241 (Richard Samuelson ed., 2015) (rejecting the “Hobbesian maxims” of force and fraud).

[12] John Adams, The Revolutionary War Writings of John Adams 292 (2000) (proposing the separation of powers including the life tenure and independent salaries of federal judges as sufficient to secure the judiciary as a reliable check on the President and Congress).

[13] Brown v. Allen, 344 U.S. 443, 540 (1953) (Jackson, J., concurring in the result) (“We are not final because we are infallible, but we are infallible only because we are final.”), explained by Linda Greenhouse, “Because We Are Final”: Judicial Review Two Hundred Years After Marbury, 148 Proc. Am. Philosophical Soc. 38, 38–39 (2004).

[14] Greenhouse, supra note 13, at 39 (“‘The Constitution does not found judicial review; rather, judicial review invents the Constitution.’” (quoting Paul W. Kahn, The Reign of Law: Marbury v. Madison and the Construction of America 169 (1997)).

[15] Hobbes, supra note 6, at 315–18 (“[T]he Prophet is the Civill Sovereign. . . . Every man therefore ought to consider who is the Soveraign Prophet; that is to say, who it is, that is Gods Vicegerent on Earth.”); see Oliver Wendell Holmes, The Path of the Law, 10 Harv. L. Rev. 457, 461 (1897) (“The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law.”).

[16] Hobbes, supra note 6, at 46–48.

[17] Baker v. Carr, 369 U.S. 186, 226 (1962).

[18] Martin v. Hunter’s Lessee, 14 U.S. 304, 373–74 (1816).

Dear Reader,

In 2019, English newcomer Olivia Colman became an unintentional beneficiary of American misogyny when she robbed American icon Glenn Close at the Academy Awards. Close’s near-flawless portrayal of Meg Wolitzer’s character Joan Castleman in The Wife was a far more interesting (and better acted) discourse on female power than Colman’s portrayal of Queen Anne in The Favourite, because The Wife was a vignette of a talented woman who actually deserved her prestige. Unlike The Favourite, Wolitzer’s revelation of Ms. Castleman exposed the American Patriarchy’s paradoxical strategy of propping itself up with the significant talents of women.

The Academy’s snub of Close’s work in Wolitzer’s challenging critique of female power in a man’s world in The Wife, covered for The Favourite’s patronizing retelling of an age old myth that women in traditionally male positions of power will magically redeem the Patriarchy of misogyny. Due partially to the Academy’s blessing, the “gut-level” misogyny in The Favourite went almost without comment, while mainstream movie critics raved about The Favourite as a “triumph” featuring a “refreshing lack of misogyny.” All The Favourite proved was that abusing the crown to cover up weak analysis and bad storytelling that favors injustice is a global problem that is not merely or primarily English.

The American tendency of using British elitism as a foil to ignore America’s problems is particularly reflected in the U.S. Judiciary. Starting with the Slaughter-House Cases, the Court copied the British strategy in Thomas v. Sorrell of extending the errors that caused the Civil War as though the Court had no part in causing the Civil War. In Sorrell, the English Court scandalously extended the very Star Chamber injustices that caused the English Civil War, which the Slaughter-House Court candidly joined when it distinguished the great Case of Monopolies to narrow the protections of the postbellum Amendments of the U.S. Constitution with these words:

But we think it may be safely affirmed that the Parliament of Great Britain, representing the people in their legislative functions, and the legislative bodies of this country, have, from time immemorial to the present day, continued to grant to persons and corporations exclusive privileges -- privileges denied to other citizens -- privileges which come within any just definition of the word monopoly, as much as those now under consideration, and that the power to do this has never been questioned or denied.[1]

As I have repeatedly noted in other publications, this sentence is a totalitarian error that elides the people with the state as symbolized in the frontispiece of Hobbes’ Leviathan. Others have explained how the noxious error of confounding the sovereign people with their representatives in Slaughter-House was carried forward by Hans v. Louisiana, according to the Court’s willful ignorance of Chisholm v. Georgia’s clear rejection of the old English qualified immunity decision in The Bankers’ Case. This confusion of the people and their governments, that originated in anti-American feudal law, was originally delineated as the first “degree of perversion” by Justice Wilson that began in the “old world” of Europe and yet found it was still “prevalent, even in the several States of which our union is composed.” Despite Wilson’s attempt to warn America of this Hobbesian perversion of sovereignty, it nevertheless became U.S. law for the first time in Trump v. United States and Seila Law LLC v. CFPB, according to the Court’s novel theory that the President is the people through direct democratic processes that are anathema to the U.S. Constitution.

In fact, the theory that the President is the people through direct democracy paradoxically arose from Justice Story’s invention of the plenary power doctrine in Houston v. Moore as extended in McPherson v. Blacker, which was vociferously asserted in the “kraken” law suits brought by now disgraced lawyers Sidney Powell and John C. Eastman to support the January 6, 2021 insurrection. This theory of plenary powers was extended in Prigg v. Pennsylvania to destroy birthright citizenship of freeborn Black Americans in Pennsylvania. After Story’s critical error in Prigg became the foundation of Immigration Law in The Chinese Exclusion Case and beyond (see my last post about this topic),[2] the Court has been asked to repeat this error as to potentially all Americans in Trump v. CASA, Inc. and Trump v. Barbara.

The common despair felt by both Republicans and Democrats in America is visible in the nearly unanimous political support for America’s royalist denization system that began in 1924 when Congress enacted the nation’s first visa program.[3] The Immigration Act of 1924 generally excluded all immigrants for the first time, and provided grounds for treating all the inhabitants in America as denizens. Ever since, the American people trusted in the goodness of each successive President not to use this power to occupy cities and localities with standing troops in times of peace despite the Posse Comitatus Act.

Few have hinted to the immigration law’s suspect constitutional underpinnings, while most blindly celebrate it as an achievement for social justice.[4] The Immigration & Nationality Act was always eugenic, the updates made in 1965 were candidly white supremacist, and the implied plenary power to exclude that still animates it should be found unconstitutional under McCulloch v. Maryland’s liberal standard. Yet, most Americans seem to believe that anything that happened in the 1960s was unquestionably liberal, and even The 1619 Project claimed credit on behalf of Black America for the racist 1965 updates to the law.[5]

Even though the Court could easily venerate the racist statutes before it, with the support of liberal outfits like The 1619 Project, the Court seems poised to take power for itself by unilaterally administering immigration law through feudalism. As such, the Court appears ready to extend the concept of enemy alien infidels from Lord Coke’s complicated opinion in Calvin’s Case as though Justice Wilson never reformed that decision to favor immigrants as friends in America.[6] And the President is clearly asking the Court to upend the statutes, however racist and awful, to give him the power to do whatever he wants to both immigrants and U.S. citizens.

To be clear, the President wants to administer pure injustice through the genre of judicial prophecies originally proposed by Thomas Hobbes so that he no longer has to consult the laws of Congress at all.[7] For example, in Trump’s first term Trump claimed that he enacted health, internet, and immigration law through Executive papers that were then laughed off as absurd. If the Court legitimizes the President’s unilateral legislative powers, Congress’s laws can be dispensed with as the king once did in Godden v. Hales and Thomas v. Sorrell according to Professor Holly Brewer’s recent analysis.

The most fascinating development in the Roberts Court is its sheer denial of the feudalistic nature of President Trump’s activism in the Court. Due to the Court’s sheer cognitive dissonance, the President can pursue radical transformations of the law while the Court precludes private litigants from making proper arguments against them. America could fall under the sway of a pretender king according to Supreme Court decisions that preclude private lawyers from arguing in defense of popular sovereignty and against the reemergence of feudalism.

Critically, the United States was the first nation to officially call bullsh** on the British Empire’s claims of legitimacy. From the Revolution of 1776 to the present day, Americans still agree with our favorite British transplant, Thomas Paine, that British monarchism was a sin. This is presumably why Solicitor D. John Sauer disclaimed any feudal basis for ending birthright citizenship in Trump v. Barbara in his oral argument.

But Sauer’s argument was to refashion Calvin’s Case to maximize feudalism by treating all the inhabitants of the United States as enemy aliens until the President exempts them as denizens in the very style of the British monarch. In short, Sauer attempted to use the anti-monarchical sentiment of America to oust the common law in Calvin’s Case as though its expression of the common law was feudal, so that Calvin’s Case’s expression of feudalism could be maxed out in America. The ACLU lawyer, acting as Sauer’s primary opposition, failed to explain the sophistication of Solicitor Sauer’s corrupt argument for feudalism by dressing the President up as anti-feudal and further mischaracterized Calvin’s Case as though it were purely common law when it was a problematic mixture of common and feudal laws.

In Calvin’s Case, Lord Coke decided that anyone born in the king’s dominions was a British subject according to a presumption of alien friendship. But, the common law of birthright citizenship derived from Calvin’s Case in America was limited by Lord Coke to only extend to Christians, and by the designation of feudal subject rather than full citizen. Ironically, Coke’s analysis would have precluded the very origin of Coke’s rule in Paul’s appeal to pagan Rome as a foreign Jew, emphasizing feudalism’s penchant for arbitrary self-contradiction.

The feudal limits of Calvin’s Case were tested in several cases implicating the American Revolution. These cases included Sir Thomas Grantham’s Case, Rex v. Cowle, Campbell v. Hall, and the celebrated Somerset’s Case, which ultimately resulted in the Revolution of 1776 that vindicated the common law from Calvin’s Case while surgically removing the dross of its feudalism.[8] The disagreement of the United States with its mother country on this topic was re-litigated in 2008 when the U.S. Supreme Court distinguished Rex v. Cowle, while the House of Lords simultaneously extended Campbell v. Hall.

Nevertheless, after the former British American colonies unanimously intended to ipso facto extend U.S. citizenship to all British inhabitants, Black and white, man and woman, the dross of Calvin’s Case’s feudal enemy alien idea crept back into the South. Specifically, its concept of being able to keep an infidel as a chattel slave, as was extended in Sir Thomas Grantham’s Case, was cited by the Supreme Court of Alabama in Atwood’s Heirs as the basis for its chattel slavery system. The complete failure of the United States to hold Phillis Wheatley’s “the heaven defended line” of ipso facto equal rights of citizens in the United States is the only foundation for the peculiar institution of chattel slavery that eventually sank the nation in a costly, bloody, and entirely avoidable Civil War.

The errors of Calvin’s Case were forcefully addressed in the lectures of the Signatory of the Declaration of Independence, Framer of the U.S. Constitution, and Inaugural U.S. Supreme Court Justice James Wilson, as well as in John Adams’ Novangelus letters.[9] Wilson noted that denization is a royal power disclaimed in America, and that in America all aliens must be presumed friends unless they are citizens of a nation that is actually at war with the United States.[10] To support this position, Wilson vigorously attacked Coke’s use of Christianity as a basis to justify the king’s power to disrespect aliens as conquered infidels that may be lawfully put to death or banished by the crown’s inherent powers as sovereign.[11]

Wilson’s careful extraction of the common law from Calvin’s Case, without its feudal exclusion of infidels like Muslims and Jews, created the American basis of birthright citizenship. Following Wilson, the Americans preserved the common law cited by Coke that began with the apostle Paul’s appeal to Rome as a foreign Jew according to his birth in Cilicia.[12] However, it removed the dross of Coke’s definition of enemy aliens as infidels, which would be an unconstitutional establishment of religion if it were ever made law in the United States.

In Barbara, Solicitor Sauer proposed that the Court reject Coke’s definition in the opposite direction of Wilson’s corrective, to surgically remove the common law so that all that remains is the feudal cancer. Sauer basically appeared to argue that all U.S. inhabitants should be presumed enemy aliens unless or until the President exempts them as denizens. This solution to the infidel problem in Calvin’s Case, redefines citizens as denizens and erases the constitutional basis for Congress’s concurrent power of naturalization by placing that power exclusively in the President by inferring the king’s powers into Article II of the Constitution.

Instead of requesting that the statute giving citizenship to all individuals born in the United States be struck down, Sauer argued that Wong Kim Ark be reinterpreted so that the statute becomes a nullity. Again, the ACLU lawyer on the other side failed to explain this danger to the Court. Instead of emphasizing the importance of the Court’s upholding the statute as the proper expression of legislative power to enact an uncontroversial representation of the American constitutional view of Calvin’s Case according to the Citizenship Clause, the ACLU asked the Court to reaffirm Wong Kim Ark — which opened the door to Sauer’s proposed solution.

Solicitor Sauer is in the unenviable position of knowing that his client is, basically, a feudalist in a nation that overwhelmingly rejects feudalism. Royalism and feudalism were not only rejected unanimously as a political aspiration throughout American history, but they are also structurally rejected in America’s forms of government. The laws and constitutions of America explicitly state in several places that there shall be no titles of nobility, and that the people give form to their governments through constitutions made and ratified by the people rather than by a royal institution like the British crown.

It will be a spectacle if President Trump is able to maintain his claims of feudal power in Supreme Court litigation aimed at turning the common law into feudal law sub silentio. The writers of history will revel in the paradox of it. And American lawyers will suffer under the stupidity of it, while being called upon by the world to explain how the words in our laws do not mean anything meaningful without the President’s assent as though he were our king.

Yours Cordially,

Joshua J. Schroeder, Esq.

[1] Slaughter-House Cases, 83 U.S. 36, 66 (1873).

[2] Joshua J. Schroeder, We Will All Be Free Or None Will Be: Why Federal Power is Not Plenary, but Limited and Supreme, 27 Tex. Hisp. J. L. Pol’y 1, 33 (2021).

[3] Immigration Act of 1924, Pub. L. 68–139, 43 Stat. 153; cf. 2 Wilson, supra note 1, at 1050 (“The power of denization is a high and incommunicable portion of the prerogative royal.”).

[4] See, e.g., Joshua J. Schroeder, A Candle in the Labyrinth: A Guide for Immigration Attorneys to Assert Habeas Corpus After DHS v. Thuraissigiam, 49 Hastings Const. L.Q. 237, 275 (2022) (containing a non-exhaustive list of reasons why “EOIR structurally fails to secure common law due process”); cf. Mary Holper, Unzipping Detention from Deportation, Research Paper 634, at 3–4 (2024).

[5] Nikole Hannah-Jones, Democracy, in The 1619 Project: A New Origin Story 33 (2021) (claiming credit on behalf of all Black Americans for the candidly racist 1965 immigration law).

[6] Calvin’s Case (1608) 7 Co. Rep. 1a, 24a (Eng.), corrected by 2 Wilson, supra note 1, at 1046–49 (“In ancient times, every alien was considered as an enemy. The rule, I think, should be reversed.”). James Wilson specifically criticized the branch of feudal law that allowed kings to make denizens and treated it as dead on arrival in the anti-royal United States. Id. at 1050; cf. Tanya Golash-Boza, Feeling Like a Citizen, Living As a Denizen: Deportees’ Sense of Belonging, 60 Am. Behavioral Scientist 1, 2 (2016).

[7] Thomas Hobbes, Leviathan 316 (A.R. Waller ed., 1904) (defining “the Civill Soveraign” as a prophet).

[8] 2 Wilson, supra note 1, at 1049 (criticizing Calvin’s Case as the “bastard mother” of a portion of William Blackstone’s Commentaries that proposed to exclude the Americans from their legal rights by treating them as enemy alien infidels); Sir Thomas Grantham’s Case (1687) 87 Eng. Rep. 77, 3 Mod. 120 (Eng.), in John Baker, Sources of English Legal History: Public Law to 1750, at 453 (2024).

[9] 2 Wilson, supra note 1, at 1049; see also John Adams & Jonathan Sewall, Novanglus and Massachusettensis 129–30 (1819) (explaining the crown’s attempt to destroy the rights of all Americans by treating them as enemy alien infidels through feudal cases like Rex v. Cowle).

[10] 2 Wilson, supra note 1, at 1050.

[11] Id. at 1049 (noting how Coke “fortifies the favourite sentiment by a pleonasm” and “attempts to fortify it [farther] by the language, tortured surely, of christianity itself”).

[12] See, e.g., Johnson v. Eisentrager, 339 U.S. 763, 769 (1950) (“Citizenship as a head of jurisdiction and a ground of protection was old when Paul invoked it in his appeal to Caesar. The years have not destroyed nor diminished the importance of citizenship, nor have they sapped the vitality of a citizen’s claims upon his government for protection.”).

Dear Reader,

In 1846, a Mississippi Court decided: “If a free person of color come from another state into this, and remain beyond a certain time, he may be apprehended and sold.”[1] To support its argument, the Mississippi Court quoted the U.S. Constitution’s Privileges & Immunities Clause “which declares, ‘that the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states.’”[2] As free persons of color could, apparently, lose their freedom by traveling to Mississippi, the Mississippi Supreme Court decided that Black Americans must not be citizens in the free states they inhabit, i.e., that, globally, no Black person is capable of being a citizen of any place.

Thereby, Mississippi usurped the concurrent power of Naturalization from its fellow sovereign States (and from free nations like Mexico) by deciding that Black Americans could only become “denizens in particular states” such that Black Americans “may enjoy in them all the rights of citizenship,” but only “so far as state legislation can confer those rights.” Ohio, Indiana, New York, California, Pennsylvania, Vermont and many other free states disagreed, when they chose to rely upon the old law that citizens admitted as a citizen to a State were ipso facto citizens of the United States.[3] These free States had to defend their concurrent powers to protect Black Americans against slavery States in the Civil War, after they had already defended the original ipso facto basis of citizenship for white, brown, and Black former British subjects in the United States against the attacks of Great Britain in both the War of 1812 and the Revolutionary War.

To be fair, Louisiana, Missouri, and potentially several other slavery States also disagreed with Mississippi as they tended to admit that Black slaves freed in the North were once free, always free.[4] In fact, California’s groundbreaking decision in Biddy Mason v. Smith, quoted the Louisiana Supreme Court at length to justify its decision to free several slaves taken into California by their masters as full citizens of California. For most states, even several in the South, to travel into a free state with one’s slaves was tantamount to a willful manumission that had a permanent legal effect on the slave, making them full citizens in the free states in which they settled.

Despite Mississippi’s particularly noxious beliefs about free Black Americans being mere denizens in the North and West, no State in the United States ever had the power to make denizens as that power resided solely in the king of England.[5] That royal power, according to the unanimous decision of the Founders and Framers of the United States, died with villeinage (i.e., serfdom or feudal slavery) and was never resuscitated in America.[6] The only kind of slavery that had officially managed to take form in the United States was chattel slavery, as indentured servants were not considered slaves but low level working class employees or laborers (see Jane Landers’ work for useful counterpoints in Spanish America, including Florida).

Nevertheless, in Atwood’s Heirs v. Beck, an Alabama Court traced chattel slavery back to the “alien enemies” idea that was created in Calvin’s Case. The idea of alien enemies was used in Calvin’s Case as a basis for denying the humanity of non-Christian people by withholding their most basic human rights of life, liberty, and property. This plugged into the former system of villeinage by creating a class of individual who were non-human, and, thereby, it was used in Atwood’s Heirs to uphold the slavery States’ powers to disrespect human rights with chattel slavery systems according to the concept of villeinage, that all people born in the king’s dominions start out as slaves by birth.

Calvin’s Case was the origin of a “birthright” of slavery if a person was born within the British Empire. The Americans did not quibble (as English judges later quibbled)[7] about feudal slavery being actual slavery. In order to reject Calvin’s Case’s reliance on feudal slavery ideology, the Americans consciously repurposed Calvin’s Case to establish the common law rule of birthright citizenship without Calvin’s Cases’s feudalism.

The paradoxical mixture of feudal and common laws in Calvin’s Case consisted in its illogical citation of the pagan Court of Festus in favor of Paul’s rights as controlling precedent for denying basic human rights to all non-Christian infidels. The Roman Empire was pagan when it recognized Paul’s citizenship by birth in Cilicia, a Roman territory. Paul was a foreign born Jew of a minority group of Jesus followers who may have been a child of Jewish slaves taken in war.

Paul expressed credible fear of political violence in Israel, asserted Roman citizenship, and sought to appeal or transfer venue of his case from Caesaria to Rome. The Court of Festus granted Paul’s request so that Paul could travel into Rome to properly litigate his case, which is regularly cited as “a head of jurisdiction and a ground of protection” in the United States. After hearing Paul’s pleas, Judge Festus “declared: ‘You have appealed to Caesar! To Caesar you will go!’”

A few years before the American Revolution, Massachusetts Governor Thomas Hutchinson asked the Lords of England to help him abridge the rights of Englishmen in the colonies, so they could not similarly appeal their rights to England. In Campbell v. Hall, Lord Mansfield answered his friend by attempting to extend the class of conquered infidel from Calvin’s Case to all British Colonists in America. Therein, Mansfield wrote that, regardless of the religious beliefs of the inhabitants of British colonies, the king could always “put the inhabitants [of America] to the sword or exterminate[] them” because “all the lands belong to him.”[8]

To the scandal of all America, Lord Mansfield resolved “the absurd exception as to pagans, mentioned in Calvin’s Case” to maximize its irrational feudalism by denying rights to all, Christian and non-Christian alike. In Campbell, the exception as to pagans in Calvin’s Case became the rule applied to all Englishmen wherever they are around the globe. Thereafter, leaving the borders of England would destroy any English person’s rights as Governor Hutchinson requested and as Mississippi later held was the case as to all Black Americans.[9]

The Americans forcefully disagreed with Mansfield’s attempt to maximize Calvin’s Case’s feudal errors, and so they rose up for the rights of all English people everywhere when they set forth a new nation upon the common law given by the pagan Court of Festus in Caesarea that secured Paul’s rights as a Roman citizen so that all immigrants were presumed friend, and, thus, immigrants were generally presumed to be legally present in the United States.[10] Calvin’s Case’s paradoxical use of Paul’s case to undermine the birthright citizenship of non-Christians was further extended as originating in feudal slavery in Sir Thomas Grantham’s Case to enslave a non-white man considered a “monster,” even after converting to Christianity, for having a birth defect.[11] Prior to this case, Sir Thomas Grantham was responsible for crushing the multi-racial Bacon’s Rebellion in Virginia in 1676 through fraud, which led to the invention of the white race and white privileges at sometime around 1700 that Atwood’s Heirs candidly cited as the treasonous and anti-American basis of the Southern chattel slavery institution.

After the Civil War, in the Slaughter-House Cases the U.S. Supreme Court extended the Southern interpretation of privileges and immunities, symbolized by the Mississippi case Leech v. Cooley quoted above, to destroy the rights of the white working class as though the Fourteenth Amendment’s Privileges or Immunities Clause made all Americans denizens. Despite some push back in cases like United States v. Wong Kim Ark and Boyd v. Nebraska ex rel. Thayer, Congress extended this denization first to Chinese immigrants in the late 1800s and then to all immigrants in 1924. The Slaughter-House Court acknowledged that when the Thirteenth Amendment “intended to abolish African Slavery,” it also included language that “equally forbids Mexican peonage or the Chinese coolie trade.”

Yet, Slaughter-House did not stop Louisiana from destroying white working class rights based upon the Court’s “slavery argument,” as explained in Plessy v. Ferguson.[12] Slaughter-House’s “slavery argument” held that the postbellum amendments may have abolished race-based slavery, but they only abolished race-based slavery. Whatever situation white laborers found themselves in when the first Constitution was drafted and ratified in the late 1700s was, apparently, to remain what all Americans faced under the post-Civil War Amendments.

However, Slaughter-House did not apply the rights of white workers, then existing, to the facts of the case. Rather, it distinguished The Case of Monopolies, and became an exemplar of C.S. Lewis’s observation: “What is new usually wins its way by disguising itself as the old.”[13] As most of the Originalists on the Court do today, Slaughter-House disguised itself as a recapitulation of the old rights of white American laborers, only to scandalously allow a new system of denization to capture all laborers in America, white, brown, and Black in a fate equal to or even worse than slavery (potentially worse, perhaps, because we no longer even have language to name it).

Slaughter-House sowed the seeds of several false histories of the former British American colonies that helped the United States distance itself from its racist past without actually resolving the Court’s former errors. These false histories tended to appropriate Irish-American history, as though all white Americans faced the prejudices the Irish faced, and that somehow this prejudice was no worse than the chattel slavery Black Americans endured. The false histories of Irish immigration-as-“white”-immigration was purposely twisted around the Irish past to blot out the chattel slavery the British imposed upon the Irish centuries prior to the existence of the British American colonies that was not racialized according to the color of skin until sometime after Bacon’s Rebellion.

Perhaps the most egregious example of this racist double-play on Irish history was exemplified by Scarlet O’Hara in Gone With the Wind, a fictional daughter of Irish immigrants who sought to wistfully justify chattel slavery as gallant and even refined. Now, in Trump v. Barbara the U.S. Supreme Court has been asked to embrace similar paradoxes by interpreting Wong Kim Ark as though it never pushed back on the denization of all Americans implied in Slaughter-House by interpreting Wong Kim Ark as an expression of denization such that the President-as-king has the final say over the citizenship rights of all Americans whether or not they complied with the Naturalization Law of the federal government. But, judging from misogynistic cultural developments in America over the last several years, the idea that Americans are all basically denizens without citizenship rights or privileges is not very surprising.

This examination of Hollywood’s role in covering up the actual origins of U.S. immigration law will continue in my next letter, beginning with a comparison of Olivia Colman in The Favourite with Glenn Close in The Wife. It seems that the complex misogyny exemplified by the Academy of Motion Picture Arts and Sciences’ choice to honor Colman by snubbing Close demonstrated that Scarlet O’Hara remains the quintessential Hollywood female archetype, according to which all movie actresses are judged. Abusing the crown to cover for American racism and misogyny is a tale at least as old as Gone With the Wind, and it continues today at the expense of Hollywood’s best female talents. But this is a thought for another post.

Yours Cordially,

Joshua J. Schroeder, Esq.

[1] Leech v. Cooley, 14 Miss. 93, 99 (Miss. 1846).

[2] Id. (quoting U.S. Const. art. IV, § 2, cl. 1).

[3] Joseph Story, Commentaries on the Constitution of the United States § 1687 (“Every citizen of a state is ipso facto a citizen of the United States.”), quoted by Boyd v. Nebraska ex rel. Thayer, 143 U.S. 135, 158–59 (1892).

[4] Atwood’s Heirs v. Beck, 21 Ala. 590 (Ala. 1852), citing Josephine v. Poultney, 1 La. Ann. 329 (La. 1846), citing Lunsford v. Coquillon, 2 Mart. (N.S.) 401, 408 (La. 1824); see also Winny v. Whitesides, 1 Mo. 472, 475 (Mo. 1824) (“We are clearly of opinion that if, by a residence in Illinois, the plaintiff in error lost her right to the property in the defendant, that right was not revived by a removal of the parties to Missouri.”).

[5] 2 James Wilson, Collected Works of James Wilson 1050 (2007) (“The power of denization is a high and incommunicable portion of the prerogative royal.”).

[6] Id. at 1081 (fuit servitus “slavery is a thing of the past”).

[7] English judges referred to villeinage or feudal slavery as the state of being “equally unfree” rather than being in a state of slavery. See John Baker, An Introduction to English Legal History 502 (5th ed., 2019).

[8] Campbell v. Hall (1774) 1 Cowp. 204, 209 (Eng.).

[9] Compare id., with Leech, 14 Miss. at 99. This dispute is still alive, symbolized by the 2008 clash of the U.S. Supreme Court with the House of Lords in their opposite conclusions in Boumediene v. Bush, refusing to limit habeas corpus to the national borders of the United States according to the English feudalism in Rex v. Cowle, and Ex parte Bancoult that extended Campbell v. Hall.

[10] 2 Wilson, supra note 5, at 1046 (“In ancient times, every alien was considered as an enemy. The rule, I think, should be reversed. None but an enemy should be considered as an alien.”); see Chisholm v. Georgia, 2 U.S. 419, 462 (1793) (“The Parliament form the great body politic of England! What, then, or where, are the People? Nothing! Nowhere! They are not so much as even the ‘baseless fabric of a vision!’ From legal contemplation they totally disappear! Am I not warranted in saying that, if this is a just description, a government, so and justly so described, is a despotic government?”).

[11] Sir Thomas Grantham’s Case (1687), 3 Mod. 120, in John Baker, Sources of English Legal History: Public Law to 1750, at 453 (2024).

[12] Plessy v. Ferguson, 163 U.S. 537, 542–43 (1896) (quoting Justice Bradley’s characterization of The Slaughter-House Cases’ decision as “‘the slavery argument’” by way of The Civil Rights Cases).

[13] C.S. Lewis, The Allegory of Love 11 (1968).

Dear Reader,

The New York Times’ new report about the origins of the “shadow docket” in a 2016 matter about environmental law suffers from several anachronisms, not least of which was Professor Baude’s invention of the term “shadow docket” in 2015. However, the bombshell reporting of the Times is an undeniable confirmation of the existence of the shadow docket, if “shadow docket” means equity docket corruption. In their new report, the Times’ revealed several confidential memos between the Justices of the U.S. Supreme Court that demonstrated how political the use of judicial equity can be.

After this report, there was a sense of public betrayal as Chief Justice Roberts is known to support the enforcement of etiquette in the Supreme Court to promote the appearance of collegiality. Yet, the memos the Times’ exposed told a different story about how the Chief Justice tipping the scales in favor of his own political views on a close 5/4 split where the minority expressed serious misgivings. However, Chief Justice Roberts’ misuse of Dred Scott v. Sandford in Obergefell v. Hodges already exposed the Chief Justice’s emphasis on etiquette as a redux of Chief Justice Taney’s old strategy for covering up political abuses of the judicial role.

Chief Justice Taney, author of Dred Scott, was known for enforcing Southern-styled manners in his Court while he presided over cases that accused President Lincoln of monarchical tyranny and nationalized slavery law. Roberts, likewise, held himself out as opposed to Dred Scott, while using Dred Scott to undermine substantive Due Process rights in Obergefell. Similarly, in Trump v. Hawaii, Roberts symbolically interpreted Korematsu v. United States as “anticanon” by deciding it was “overruled in the court of history,” in a decision that closely paralleled the reasoning in Korematsu.

Those who have read their jurisprudence would know both Taney and Roberts are not the cordial, professional, or courteous people they appeared to be on the surface. The Times’ reporting merely broke the spell of appearance-driven-etiquette that was broken at least once in the American past when the U.S. Supreme Court’s role in causing the Civil War became widely acknowledged after Dred Scott. But the use of manners, warm feeling, and even flattery to achieve potentially society-ending results like Dred Scott is still under-discussed.

America’s general failure to discuss this phenomenon opened the opportunity of a renewed public relations defense of the dignity and honor of the Court by dogmatically opposing any attempt to nullify anything a judge decides or even thinks. Even built in, structural methods of nullification like juries are blasted as dangerous and unlawful when they appear to unsettle a judge’s position regarding the law. But this pro-judge dogma appears to be waning now that the false-courteousness of men like Chief Justice Roberts is being loudly decried in the public square.

Now that the Court’s mask of good manners appears to be slipping, it is time to reconsider nullification. What is it, and why do judges seem to hate it so much? And, more specifically, why was nullification painted, by some, as though it were exclusively a tool of racism and bigotry, when the anti-nullification crowd has a clear history of upholding racism and bigotry in the Taney Court era?

For example, in Ableman v. Booth — one of the cases that led up to the Civil War, the Supreme Court tried to stamp out an apparent attempt to nullify the Fugitive Slaves Act of 1850 in the State of Wisconsin. The injustice of Ableman, and the unconstitutionality of the federal law it protected, appeared to cause some scholars to conclude that legal nullification is not always a bad thing. The power of the Court to strike down unconstitutional laws symbolized by Marbury v. Madison validates this perspective, and the jury’s apparently unreviewable power to administer mercy through “nullification” also seems to support it.

During the ordinary function of free and healthy societies the occurrence of legal nullification should be rare. The Court emphasized this in its iconic decision Cooper v. Aaron, which unanimously enforced Brown v. Board of Education in the face of threatened nullification by the State of Arkansas. Instructive as Cooper was, it erred by extending Ableman as though it were not a clearly unjust decision thrown into doubt by the Civil War itself.

To be clear, Ableman could have, and should have, struck down or at least distinguished the Fugitive Slaves Act of 1850. Doing so might have avoided the need for a Civil War according to a long held opinion in the South (that spread Northward in Winny v. Whitesides and Westward in Mason v. Smith) that a slave was once free, always free according to the judiciary’s overarching object of “insur[ing] domestic Tranquility.” Despite 20/20 hindsight, and the recent talk of the so-called “anticanon,” ever since the Slaughter-House Cases the Supreme Court mostly “celebrated” Dred Scott v. Sandford and other illegitimate decisions that caused the Civil War.

Thus, the Cooper v. Aaron Court voted to enforce Brown v. Board of Education by venerating Ableman. The Cooper Court could have easily made use of the postbellum case Ex parte Young, instead of Ableman; i.e., its reliance upon Ableman was completely needless. And now, Cooper’s reliance on Ableman is a problem as Cooper is frequently being drawn into question to justify political abuses of the Court by rushing to fait accomplis in the shadow docket to corrupt the merits docket in favor of anti-abortion state laws and anti-birthright citizenship opinions of the President.

The Cooper case was drawn into question several times in the so-called “shadow docket.” Dissents in Whole Woman’s Health Organization v. Jackson and Trump v. CASA, Inc. both referred to the majority opinion as a threat to Cooper. But Cooper was threatened in other shadow docket decisions despite the lack of reference to Cooper in a dissenting opinion in many cases like the one recently reviewed by the Times: West Virginia v. EPA.

In another such case, Wheaton College v. Burwell, the Court drew Cooper into question by enjoining the federal law from stopping a private party’s unilateral nullification of the law. Cooper was also threatened in DHS v. D.V.D., where the Court effectively issued a universal injunction to block courts from protecting remedies for laws being nullified by the President of the United States. The universal stay/injunction in D.V.D. followed days after its decision in CASA to deny that the Court has power to issue universal injunctions—both of which effectively threatened Cooper by fostering nullifications of the law.

The Court-led nullification of federal laws appears to be unique to the Roberts Court. In all previous eras, the President and the States were the primary nullifiers of the laws. The Framers of the U.S. Constitution did not fathom that, in the future, a Court might be the cause of its own collapse, nor did they guess the role of etiquette in dangerous judicial nullifications of law for political reasons in both the Taney and Roberts Courts.

But the sheer failure to address these known issues in all the time after the Civil War, when the issues might have been raised, is most telling about who is guilty of wrong in America. The blind continuation of Dred Scott in Justice Thomas’s infamous bid to end substantive rights through the Slaughter-House Cases in Dobbs and beyond relieves the Founders and Framers of the brunt of the responsibility for our problems. The Framers of the U.S. Constitution empowered us to amend government form where we find it fundamentally flawed, and so we might have chosen, and still might choose, to save ourselves from this Court of false etiquette and unjust nullification.

Yours Respectfully,

Joshua J. Schroeder, Esq.

Spoiler alert: The conclusion of the film Black Swan is revealed below.

Dear Reader,

Justice Oliver Wendell Holmes, Jr. taught that the gold standard of American legal practice was to play the secular prophet. According to Holmes, good lawyers would survey the circumstances of client matters under the law and accurately predict the future for them. And good judges would invent rules that would be so reasonable that they never would be unsettled by future courts or legislatures, making them tantamount to prophecies by judicial fiat or what is now called “manifestation.”

In American literature, Joan Didion candidly embodied Justice Holmes’s ideal. By accurately disposing of the Hippies’ hypocrisy with prognostications of American doom, Didion became rather glamorous in her day. Some still liken Didion to a sphynx for her peculiar way of combining mystery and violence into prose that gave Americans a sense of certainty in an uncertain world.

But such self-soothing prophecies were always unsettled by Hollywood’s black swans. Black swans are world changers we do not, or cannot, foresee.[1] They remind us that our dooms are not set in stone. No matter how dark the clouds on the horizon look, there is hope for us still.

But hope is far more uncomfortable than certain doom, or at least that is the lie at the bottom of our hearts. In fact, America designed its judiciary systems upon the Puritanical lie that we can trust our own innate sense of pleasure and pain, rather than “the thing with feathers” Emily Dickinson was talking about. Obviously, our dogmatic trust in our emotional memory of the past over our hopes for the future has led to contradictory results.

Even in the full light of Lili Anolik’s renascence of Eve Babitz’s life and works, Americans appear to keep choosing Didionic horrors over Babitzian felicitations. The apparent fate of Babitz as intentionally forgotten and Didion as beloved, is a soft, society-wide proof of Daniel Kahneman and Amos Tversky’s Nobel Prize winning thesis. I.e., the general preference Americans have for Didion over Babitz appears to show that human beings do not have the inherent capacity to remember their own pains and pleasures accurately.

In fact, Eve Babitz addressed this paradox when she commented upon the miracle of Hollywood’s self-enchantment in the face of America’s “ever-present fear[s] of total disaster (earthquakes, fires, random murders).”[2] Babitz constantly reframed our feelings of doom, expressed as distrust for the Santa Ana winds, worry over natural disasters, or fear of random violence, into a morality play about the impermanence of human life in Hollywood, California. In her way, Babitz opened a path for future black swans to tell us about a so-called “beauty in the breakdown” in order to help us hold the line against Joan Didion’s doom prophecies.

Black swans can do this by simply being themselves, in Babitz’s words, “freakish, beautiful outsiders.”[3] At their best, a black swan can inspire the future by allowing their audiences to tear the secular veil of American society; to see what lies underneath popular prejudices and beliefs monetized by Didionic prophets. But there is a dark side to this tale.

The fate of humanity misinterpreting its pains and pleasures in the short game, probably best captured in Michael Lewis’s real-world exposition in Moneyball, causes us to misallocate temporal rewards and punishments. We favor those who seek our destruction, like Joan Didion and Oliver Wendell Holmes, whose doom prophecies were never neutral. To be clear, Joan Didion was a literary ninja who knew exactly how to cut her subjects to the very bone, to make them suffer and bleed, and whose obsession with professional security caused her to deny mercy to nearly every victim she felled with her literary blade.

Curiously, however, Didion seemed to protect and help Babitz, at least at the beginning. Didion defended Babitz, despite Babitz’s countervailing nature as a potential destroyer of Didion’s practice of prophecy in literary spaces. And Babitz generally admitted that Didion was glamorous in her day, and, so, Babitz seemed to openly covet Didion’s status.

But, perhaps, it is inaccurate to say Didion was protecting Babitz simply because Didion held a coveted status in the literati of her day. Maybe Didion’s projects in prophesying were facilitated by Babitzian black swans all along. As one of Hollywood’s black swans, Babitz fed Didion’s prophecies with fresh material, and was undoubtedly a key source of Didion’s Hollywood mystique.

Though history records Didion as a near-instant success and Babitz as a late rising star, Didion needed Babitz to keep her position as America’s favorite prophet. There is plenty of evidence that Babitz magnanimously imbued Hollywood with its open door to outsiders like Didion.[4] Though Babitz herself embraced Didion as an L.A. woman in her own right, in Los Angeles, Didion was known as “‘that lady from Sacramento’” who dubbed Jim Morrison “one of the ‘missionaries of apocalyptic sex,’” while Babitz notably managed to have sex with Morrison without causing the world to heave and collapse.

As Anolik noted, this was a significant failure of Didion as she and her husband attempted to write movies and wished to inspire Hollywood as Babitz seemed to do naturally. But Didion became a Hollywood critic, not a Hollywood muse. And there is significant evidence that, despite the highfalutin litarati status she held, Didion was actually the most covetous of the pair; a point which Anolik was criticized for making too harshly, perhaps, for Babitz’s taste.

Judging from Didion and Babitz’s literary offerings, it is difficult to say which one led, and which one followed. Both have books titled after famous albums of their times. Didion’s White Album may have gone to print first, but Babitz credibly claimed to have been the L.A. Woman her book and The Doors’ album is named after. Babitz took longer to place her writings, but she was a self-made muse and inspirer of her own works and the works of others — giving Steve Martin his white suit, and helping her sister bring leather to rock music for example.[5]

Black swans, like Babitz, take flight and change the world before the public can take notice. They do not wait to pester travelers with riddles about fate and doom, but hope to inspire travelers, sometimes to better paths, before travelers even know they have been inspired. The fact that black swans are unseen prior to changing the world appears to be more due to public preference for the comforts of the status quo than the swans’ preference to remain invisible.

The hopes and fears of all the years, as the old Christmas hymn says, are fundamentally linked. Yet, the prognostications of doom presently flooding into America from all corners of the globe are falling out of fashion. Didionic prophesies of doom always existed to comfort Americans who felt that American culture was changing too fast.

Neither those who fear, nor those who hope, are the audiences who were ever the patrons of doom. Didionic dooms were always purchased by purveyors of the status quo, who, in a previous era, invented eugenics to keep the status quo of white superiority. Like Didion later did to degrade the hopeful resistance of the Hippies, the eugenicists would raise the prospect of dooms like “being swamped with incompetence,”[6] to justify heinous crimes against humanity that ultimately weakened America and degraded the public welfare.

Yet, hope is having a moment in the eye of America’s storms, as several Babitzian black swans are taking flight, almost synchronized, to change things here. And the brighter the light of this hope, the deeper the shadow. Those who spread hope in America are hunted by the fearful, and the nihilist adherents to the status quo alike.

The final result of such a hunted individual is depicted in the 2010 horror film Black Swan, which ends in suicide. The film Black Swan depicts the very nature of being a black swan as a burden leading to self-destruction. Yet, if Babitz can be believed, being a black swan is the burden of bearing momentary extravagance, glamour, and wonder before the eyes of a star crossed public who long to pass through death into new life.

Perhaps hope in the face of death is the madness of Sylvia Plath depicted by Natalie Portman above. Or, perhaps, it only looks mad to those who cannot see how a black swan is transforming herself, or preparing herself to be transformed, into a new way of being. As Hannah Arendt wisely reminded us, the cries of the newborn exist to challenge the foreboding dooms of the Didionic sphynx and the madness depicted by Natalie Portman to reveal them both as basic defenses of the status quo in the face of natural societal change.

Like a pregnant mother, a ballerina past her prime has the glorious opportunity to remake herself anew. Perhaps, the ballerina must die so that the woman can become something more than she has been. To such a woman, death is a doorway.

A woman in transition can call forth all her phoenix fires to burn away what was, in order to make way for what is to come. She can let go of her prophetic powers to let the next generation have a choice, but in so doing she can become an inspiration to the youth by provoking dreams. To do this, like Forrest Gump, a black swan must be fearless about the unknown future and step forth in faith like Eve Babitz did to contest all the dooms of Joan Didion.

A phoenix-muse like Babitz stirs as dooms are lobbed at her like grenades so that she can emerge transformed by the very things set in motion to destroy her. As such, after Babitz actually did burn half her body, she reportedly said: “I’m a mermaid now.” Even catastrophic change does not have to defeat a black swan, because she can use it to reveal her capability of charting a course through transformations however painful and traumatizing it might be in the moment.

Now that Anolik’s renascence of Babitz is in full swing, the legal profession can only guess whose renascence might similarly unsettle the legacy of the formerly favored Justice Holmes. In my scholarship, I proposed a revival of Phillis Wheatley’s muse to break apart Holmesian prophecy. But the pattern of black swans in the course of social change cannot be doubted, and perhaps a new voice is needed, like Valarie Kaur, who is presently singing the great American clarion call to hope.

There is a place for Eve Babitz in American legal discourse as the person who successfully disputed the dooms of Didion in a former day. Both Babitz and Didion’s contributions to the confessional art genre were made possible by Wheatley’s original defense of copyright law in America. Critically, Babitz remains a viable example of persistence in the face of challenges rather than succumbing to the suicidal ideations featured in Sylvia Plath’s, perhaps, more glamorous arsenal.

As Babitz appears to hold, the artist does not need to succumb to death in order to transform herself; so too might the American judiciary in the future. The great surprise in the mysterious unknown future is the blessing of Babitzian art. Babitz’s carefree way of unsettling American dooms is the marvelous realization that hope is not actually uncomfortable at all. Finding our way home might be as easy as clicking our heels, and this profoundly American thought assures us that hope is as freeing and restful as a dream.

Yours Cordially,

Joshua J. Schroeder, Esq.

[1] Nissim Nicholas Taleb, The Black Swan: The Impact of the Highly Improbable xxii (2007).

[2] Eve Babitz, Black Swans : Stories 50–51 (1993).

[3] Id. at 195.

[4] Eve Babitz, L.A. Woman 19 (1982) [hereinafter Babitz, L.A.] (“For L.A. women became L.A. women if they got there young enough, no matter what they had been born into.”).

[5] Babitz, L.A., supra note 4, at preface; Lili Anolik, Hollywood’s Eve 221–34 (2019).

[6] Buck v. Bell, 274 U.S. 200, 207 (1927).

Dear Reader,

Following President Trump’s spat with the Pope over Truth Social, Secretary of War Pete Hegseth led a Pentagon worship service where he quoted a fake Bible verse taken straight from the Academy Award winning film Pulp Fiction. The Secretary’s attempt to indoctrinate the Pentagon with Pulp Fiction gospel is a particularly blasphemous violation of the Establishment Clause. The American separation of church and state was designed to protect the independence of churches and religious communities from this exact genre of false religion dictated as government policy.

The fake Pulp Fiction Bible verse, repeated by Hegseth as a colorful reinterpretation of Ezekiel 25:17, was originally said by actor Samuel L. Jackson to justify a murder. It was an embellishment of the Bible by a Hollywood villain to justify crime. Hegseth quoted the passage with an apparent similar intent to justify perfidy, crimes against humanity, unjust wars, murders and unjust prosecutions of U.S. citizens, and presidential usurpations of legislative and judicial power with an appeal to higher laws and powers.

As beloved Hollywood maven Eve Babitz would have said, President Trump and Pete Hegseth are attempting to “self-enchant.”[1] The Supreme Court of the United States (“SCOTUS”) seems ready to affirm Trump’s bid to enchant himself as America’s religious authority through Hollywood stardust. The Court already set aside the Lemon test to potentially allow government officials to lead worship and prayer in government spaces, and it has repeatedly validated Nazism, Klanism, Homophobia, and Misogyny as protected speech.

According to Trump v. United States, the President’s most controversial opinions are not prosecutable as long as the opinions were expressed in the course of the President’s official duties. Even so, if there was one exception to Trump, behavior amounting to treason, sedition, or insurrection should still be available to prosecute—even against a sitting President (once removed of course). But the Court’s decision in Chiles v. Salazar might interpret such treasonous or seditious speech or communicative behavior as an unregulable First Amendment protected viewpoint.

In Chiles, the Court decided that a State cannot regulate professional speech through licensure, even if the speech is completely unethical and potentially criminal. Justice Thomas’s former clerk and mastermind of the January 6 insurrection, John C. Eastman, may successfully manage to use Chiles in his forthcoming SCOTUS petition to get his law license back. If Eastman’s January 6, 2021 speech was protected viewpoint speech that cannot be regulated by the California Supreme Court under Chiles, then there may be no professional consequence for lawyers who incite insurrection, sedition, or treason with reckless legal conjecture premised on conspiracy theories including those about lizard people and cannibalistic pedophiles running the world.

One of these individuals may be Sidney Powell, the lawyer who bellowed “release the kraken” in a public statement regarding her filing of several cases in federal courts attempting to upend the 2020 election. Through Chiles, the Court may absolve the worst and most corrupt American feudalists who appear to be ready to crown Trump the king of America. Thus far, their attacks on democracy have mostly been rejected in Court, but Trump’s redefinition of justice in America appears to be unchecked based on an underlying belief that his speech is inherently non-suspect even as it appears to violate the constitution and criminal statutes.

Non-satirical speech over social media that postures Trump as a religious authority is not supposed to be protected speech, especially if it is the President’s own speech. It potentially treasonously, or at least seditiously, incites an overthrow of the First Amendment itself. However, the Supreme Court’s paradoxical sense of text, history, and tradition might include speech designed to topple the First Amendment as a protected viewpoint by and through Chiles, Trump and Seila Law LLC v. CFPB, to allow a rival pontiff to establish in the Oval Office.

Meanwhile, on April 1, 2026 President Trump’s Office of Legal Counsel (“OLC”) issued an opinion that the Presidential Records Act is unconstitutional. The OLC imagined that it was impossible for a President to be charged with treason, sedition, or obstruction by sequestering or destroying presidential records after he leaves office. Citing to Trump and Seila Law, the OLC concluded that the separation of powers allows the President to ignore statutes he feels “intrudes upon the independence and autonomy of the President.”

This OLC opinion potentially absolved President Trump for his alleged crimes arising from his absconding with several boxes of Presidential documents at the end of his first term. According to NLRB v. Noel Canning, the Court has already committed itself to interpreting such OLC opinions as if they were precedential by inverting Justice Frankfurter’s concurrence in Youngstown Sheet & Tube Co. v. Sawyer where Frankfurter explicitly refused to give an advisory statement on “the gloss which life has written upon” the constitution. After Noel Canning, the Court does and will give advisory statements by inverting Justice Frankfurter’s attempt to prohibit advisory statements as a justification for giving advisory opinions.

In a new case, the American Historical Association is setting out to prove that there is still a basis to sue a President as “a legitimate class of one” according to Nixon v. GSA. However, if the Supreme Court allows Trump to use Truth Social, a company he owns, to adjudicate administrative issues without an enabling act in Lisa Cook’s case, then it may not matter. Trump will be that much closer to establishing the lucrative entertainment-vigilantism content machine his followers really want.

Just imagine, Dr. Phil could be embedded in ICE task forces and deputized to give credible fear interviews or even to adjudicate defensive asylum claims in the Cops-styled TV show Dr. Phil clearly envisioned himself producing with the President. Or better yet, TikTok influencers trying to reenact the good old days of To Catch a Predator could be deputized with adjudicatory powers, to dispense justice-as-entertainment outside of the traditional criminal system. Viewers could vote on the results they want to see in real time, not unlike the depiction of the Colosseum we know from The Gladiator.

Yet, Hollywood is still in the game of self-enchantment. For example, Ariana Grande wrote a feminist corollary to the fake Pulp Fiction Bible verse Hegseth recently quoted in her hit 2018 song God is a Woman that featured a Madonna cameo voice-over to justify shattering the glass ceiling. Like Grande, and her supportive pop star elder Madonna, Hollywood-at-large does not and never did waive the argument that the Pulp Fiction fake Bible verse could be used for social justice.

Hollywood’s embellishments of the Bible might be blasphemous if they are taken as religious doctrine. But in context, even Hollywood’s most racy stories can provide a warning of men like Hegseth, and in the hands of a talented woman they may yet produce results for social justice movements. Thus, it does not seem that Hollywood condones or supports the extension of its glamour or clout to aid or abet Secretary Hegseth’s crimes even as Hollywood continues to tell stories about problematic and terrifying clout chasers including Donald J. Trump himself.

Yours Cordially,

Joshua J. Schroeder

[1] Eve Babitz, Black Swans 49 (1993).

Dear Reader,

Outrage mockingly soothed by the outrageous is a recipe for a Reign of American Terror not yet known to the world. Under Robespierre, French Terrorisme was a government policy similar to Trump’s policies designed to terrify immigrants and other disfavored groups. Trump appears to be trying to remake the French Terror in America by feeding the fires of American rage through apostasy dressed up as religious devotion.

For example, this image was posted by President Trump on Truth Social along with a tirade about Pope Leo XIV that seemed to be intended, despite later explanations, as an unconstitutional rival claim of religious sovereignty over Americans.[1] Prior to this post, several of the Pope’s American bishops commented publicly about the Trump administration’s sickening use of Hollywood movies and video games to glamorize the war in Iran as entertainment. Likewise, all lawyers should condemn Trump’s attempt to mutate administrative adjudication into a form of social media entertainment through Lisa Cook’s case, without an enabling act.

Imagine, you make an administrative claim for monetary benefits involving sick pay, or something else reasonable and contractually required. Then, without legal justification, the President reroutes your claim to Truth Social. He ominously posts a similar AI created image with the President as Jesus laying hands on your head. You are already healed, the Truth Social post proclaims in a statement publicizing the decision in your matter. Case dismissed.

This example might be facetious, if it were not already the case that Edward Coristine, a.k.a. “Big Balls,” was deputized as a sort of vigilante in the Department of Government Efficiency (“DOGE”), without an enabling act. Many purged federal workers are facing a panoply of absurd realities, because of the President’s unilateral activities without statutory basis. Among other things, the President’s administration (1) delayed and/or denied benefits legally due to many retiring employees who were incentivized to leave; (2) falsely recorded several living people as dead in order to cancel their benefits; (3) perpetually categorized immigrants as arriving so that they can perpetually be detained; and (4) administratively granted white supremacist Afrikaners refugee status because the end of apartheid in South Africa was, apparently, grounds for “a well-founded fear of persecution based on race, religion, nationality, membership in a particular social group, or political opinion.”[2]

Despite the fact that the Supreme Court is majority Catholic, Justice Barrett and potentially others on the Court defend the secular affirmation of death penalty decisions that are, presumably, against their private religious beliefs. The other Catholics on the Court may similarly see themselves operating in a fallen, Protestant experiment that requires them to artificially deny their better judgments to make room for Hobbesian concepts of sovereignty anathema to the intent of the American Founders and Framers. In the face of the Biblical prophecy in Revelation, the prophecy that Trump appears to follow comes from the atheist philosopher Thomas Hobbes who envisioned a real life Game of Thrones to establish a global society with one absolute ruler, which the Court Catholics might interpret as, basically, Protestant.

The Catholic judges may be, essentially, feeding America to the wolves, or the Wolf King as some of the Protestants call Donald Trump. They may interpret American sovereignty, in Hobbesian terms, as ultimately tracing back to the President according to “the chain of dependence” they invented in Seila Law LLC v. CFPB. Yet, the apostasy of large swathes of both Catholic and Protestant groups in America in favor of Trump-as-God, or at least Trump-as-new-Pope, appears to amount to nothing more than a product of boredom. Jesus was not entertaining enough, so several Evangelicals intentionally voted for Satan to bring in the end times for funsies.

Trump seems to have fit himself into an Evangelical demand for a Satanic figure to kick the rapture off that was created and promoted by B-level entertainers in the late 90s and early 00s with very little actual grounding in the Bible. At the same time, Trump actively deceives Christians to believe he is a Christian, or at least that he is redeemable and wants to be redeemed, without producing any of the fruits of the Spirit. Some actually think he is God’s chosen.

But Trump knows it was B-level Hollywood film entertainment that created him, and that unbiblical legends of the rapture, popularized by the Left Behind book and movie franchise, currently empower him. As the great Catholic writer Flannery O’Connor noticed, the Bible says that it is the body that will be resurrected in a glorified state to live on a new earth foretold in a passage of Isaiah 11 where God proclaims “on all my holy mountain” there will be no violence. According to the actual Bible, the new earth is to be inherited by the meek, apparently, not the ostentatious.

And thus, in order to counter these actual Bible passages with anti-biblical images of rapture and the end times that fit a Hobbesian gospel, Trump must lay a claim upon Hollywood glamor to make it seem “Christian” to many Americans for the President to go to war in Iran. The goal of many of Trump’s constituents seems to be to spark a war that ends in a final battle in Israel’s Megiddo Valley where they hope to witness some real angels and demons squaring off over the fate of humanity. As noted in my previous post, the Ellison family is cornering the market to sell tickets to what will surely be an Israeli-hosted UFC-style match between good and evil, largely to entertain American Evangelicals who are too bored with Jesus to make peace.

In all this hubbub motivated by American greed and boredom, the First Amendment is getting lost in the mix. Evangelical America’s passionate lust for images of beauty and divine retribution against America’s perceived enemies appears to be working to sink any resistance Americans could have otherwise maintained against this clearly unconstitutional establishment of religion. In my next post, I will explain the role of Trump’s proposed total breach of the separation of church and state, including relevant First Amendment standards as they currently exist, in order to understand the role of Trump’s apostasy in his administration’s resurrection of the king’s feudal “justice” as the President’s “justice” at the expense of the American judiciary.

Yours Respectfully,

Joshua J. Schroeder, Esq.

[1] Compare, the White House’s re-post of Trump-as-Pope and its post of Trump-as-king.

[2] 8 U.S.C. § 1101(a)(42).

Dear Reader,

Move over Hollywood, the U.S. Supreme Court is poised to rebrand administrative adjudication as the nation’s primary engine of satirical content creation. In late January, the President asked the Supreme Court to legitimize Truth Social, a for-profit company the President owns, as a lawful administrative tribunal if he wants it to be. Specifically, he claimed that making a post on Truth Social and giving Lisa Cook a chance to respond on Truth Social was notice and an opportunity to be heard.

Notice and an opportunity to be heard is the magic language federal courts use to signify that the Due Process Clause is satisfied. The Due Process Clause requires that due process must be provided before a person’s life, liberty, or property can be taken from them by the government. Some legal professionals characterized the request of the President to use Truth Social as a way to provide due process as an avoidance of more administrative process, but this characterization is constitutionally backwards.

If the President is allowed to define what process is due, he could expand upon the process through social media and use it to facilitate a panoply of star chambers in America, without congressional approval. For example, his administration has already discussed producing a reality TV game show where immigrants compete for U.S. citizenship. If the Court allowed the President to royally dispense with statutory requirements of due process, as he is requesting, Trump’s use of Truth Social as a method for providing due process may be a total overhaul of the administrative state.

About a month after arguing that Truth Social is a legit administrative tribunal if the President wants it to be, the President personally scuttled Netflix’s $82.7 billion bid and backed Paramount’s hostile takeover in a Truth Social post that Netflix would have to fire former Obama/Biden official Susan Rice if it wanted the federal government’s approval. If the Court allows Truth Social posts as legitimate due process, the President’s post about firing Susan Rice could be all the due process the Federal Communications Commission (“FCC”) is required to give before legally penalizing Netflix. According to the chapter of Project 2025 written by FCC Chairperson Brenden Carr, Section 230 of the Telecommunications Act allows him to treat online service providers as if they were common carriers.

Translation: Carr thinks he can legally go after Netflix (and YouTube, and Hulu, and Google, and Facebook, etc.) for facilitating anti-Trump speech. But even if Carr did not pursue Netflix, the President has the Federal Trade Commission, the Security and Exchange Commission, the Department of Homeland Security, and the Department of Justice at his fingertips. Despite a panoply of options the President might use, Carr’s public threat of revoking ABC’s broadcast license for airing a broadcast of Jimmy Kimmel Live! that criticized the late Charlie Kirk was thought to be the chief threat against free speech in the United States.

The FCC’s threat of revoking licenses to scare media companies into compliance with the federal government is exactly the type that King Charles II used to put himself above the law in Thomas v. Sorrell. The Sorrell decision repeated the very errors that caused the English Civil War by violating the Case of Monopolies that caused the royal oppressions of the star chamber that led to the trial and beheading of King Charles I, and nevertheless it was shockingly extended by King James II in Godden v. Hales. As Godden alone seemed to receive criticism by the royalists of England, Sorrell was sometimes cited in American Courts as legitimate precedent despite doing practically the same thing as Godden: placing the king above the law.

Trump loyalists may have similar dividing lines as the English royalists did over Sorrell and Godden. For example, Charlie Kirk appeared to think that it would be “pathologically insane” for a President to dispense with the current War Powers Resolution of Congress to go to war in Iran. As the President prepared to engage in just such a military exercise, Trump allies Jared Kushner and David Ellison organized the bankrolling of Paramount Skydance’s hostile takeover of Warner Bros. Discovery with the sovereign wealth funds of the Middle Eastern monarchs of Qatar, Saudi Arabia, and Abu Dhabi.

Did Kushner and Ellison successfully identify the key to peace in the Middle East through Hollywood movie deals? Probably not. More likely, Millennials like Kirk, Kushner, and Ellison believed the generational lies of the Boomers embodied by Trump who dressed up Larry Ellison’s company Oracle’s purchase of TikTok as though it were a free market purchase rather than a potential arm of Trump’s new administrative state that could reshape the meaning of notice and an opportunity to be heard. The Boomer generation’s worst, led by the OG “gray champion” Donald J. Trump, appear to be banking on the power of TikTok and other social media companies to appeal to the masses as they appear to be test-ballooning their running of the new administrative state through them.

When the Boomers told Millennials not to worry about America’s wars in the Middle East, because the internet would “democratize” the nations America attacked, we learned not to trust everything the Boomers told us. It is notable that David Ellison’s father Larry’s company Oracle quietly secured majority control over TikTok in America with the President’s help, while Secretary Hegseth publicly supported the Warner Bros. merger as necessary for the war effort in Iran. Trump is poised to “democratize” both the people of Iran and the people of the United States by destroying any potential for democracy in either country through the royal prerogative as given in Sorrell and Godden that allowed the king to dispense with the laws of Parliament in the very way the President dispensed with Congress’s decision not to declare war with Iran.

The Framers of the Constitution strenuously opposed the powers of a future tyrant, yet believed in the honor and integrity of future officeholders to stave off royalism. They left us to struggle with our current Supreme Court’s “originalist” limitations of Article II of the U.S. Constitution to restrain a reality TV star with kingly or even godly aspirations to rule the Oval Office like a throne room or chapel for state-worship. Barring that, the Framers left us to overcome tyranny as they themselves did, through activism and action by citizens and lawyers alike to vindicate our freedom.

Yours Respectfully,

Joshua J. Schroeder, Esq.

Disclosure: The Author represents clients that are effected by the cases discussed in this post.

Dear Reader,

In my last missive to you, I explained how the potential horrors that may follow in the wake of the conversion therapy decision, Chiles v. Salazar, could be limited by Trump v. Barbara, the birthright citizenship case. While the Barbara Court could limit Chiles, it likely wont. Yet, the Court is also more open than ever to departing from extremely recent decisions on ad hoc bases.

Ad hocery is the Court’s practice of giving ad hoc decisions to resolve specific issues on a case-by-case basis symbolized by Mathews v. Eldridge’s cost/benefit balancing test. On the other hand, stare decisis doctrine is the Court’s practice of standing by past decisions today to ensure predictability, fairness, equality of rights, and the rule of law. Viewing the Court’s prudential rulings in general, its ad hocery was probably meant to fill gaps in the general common law rule that the Court follows precedent.

However, the Court apparently reversed this general framework by making ad hocery the rule and stare decisis the exception. This was done when the Court repeatedly extended a Mathews-styled Janus v. AFSCME balancing test as anti-precedent precedent. After overruling several precedents under Janus, the Court finally overruled Roe v. Wade in Dobbs v. Jackson Women’s Health Organization. Justice Kagan managed to get a narrowed version of her concept of statutory stare decisis on life support in Allen v. Milligan, which extended the idea that “stare decisis is a foundation stone of the rule of law” when the Court decides statutory text.

Despite the Court’s systemic embrace of ad hocery, the Court almost charted a new course in Ramos v. Louisiana, along the lines of Justice Scalia’s old rejection of “the bestiary of ad hoc tests and ad hoc exceptions that we apply nowadays.”[1] Unfortunately, Ramos was a blip. Though Scalia was never wholly serious in his critique of ad hocery, in Hamdi v. Rumsfeld Scalia marvelously rejected Mathews-styled ad hocery “where the Constitution and the common law already supply an answer.”

The reason Scalia was inconsistent about his dislike for ad hocery was because ad hocery is an expression of judicial power. Outwardly, Scalia criticized judge-made laws as a usurpation of legislative power, and his apparent dislike for ad hocery fits this wider criticism. However, Scalia also reveled in his own power more than the average jurist.

Thus, Scalia would likely have supported Justice Kagan’s meager attempt to preserve stare decisis as a way of preserving the Court’s interpretations of statutes as precedential. Theoretically, this would leave the Court greater leeway to modify its interpretations of the U.S. Constitution, because no other power in the government can, apparently, check the Court’s revisions of constitutional provisions. Basically, Scalia’s rejection of ad hocery as nominally reformed and extended by Kagan in recent case law, is a do-it-if-you-can-get-away-with-it jurisprudence.

But the common law, as Scalia argued, already provides a solution — even, and perhaps especially, where the Court cannot technically be checked by the other branches. The common law requires the Court to decide when and where the statutes are constitutional, and where they are not the Court must find the statutes void. This is not usurpation or legislation from the bench; this is the constitutional structure intended by the Founding Fathers as originally demonstrated in Marbury v. Madison.

Justice Scalia’s fainthearted “Originalism” and “Textualism” have started to replace the actual constitutional structure, symbolized by Marbury, that the Court is meant to expound in America. The Court has stopped applying constitutional avoidance doctrine, which requires the Court to adopt interpretations of statutes that are least likely to conflict with the constitution. Instead, the Court has begun reinterpreting the constitution so that the constitution fits the Court’s passing interpretations of statutory text.

The theory behind this inversion of judicial process according to Textualism is the feudalistic theory given in Seila Law LLC v. CFPB. In Seila Law, the Court decided that the separation of powers requires that the President “could ignore federal law and fire an agency head without cause,” because the President is the most democratic branch of the government. Thus, the Court implicitly decided that the scandal of Godden v. Hales that put the king above the law in England was resolved by the democratic system that elects the President into office in the United States.

The most obvious problem with Seila Law is that its resolution of Godden from the U.S. Constitution does not exist, because the U.S. Constitution candidly does not mandate or require the President to be democratically elected. Thus, the Court appeared to extend the feudal powers of a king, that scandalized even Great Britain in Godden, into American law through the Constitution by interpreting that the Constitution resolved this problem when it did not. The States gradually required the democratic election of our Presidents, therefore, the Court’s structural basis for deciding Seila Law was actually a happy accident if it did, in fact, resolve the problem of Godden in America at all.

The Supreme Court’s ability to expound illusory and even mystical readings of the U.S. Constitution facilitates its Textualist demagoguery in cases of statutory interpretation. For example, in the oral arguments in the recent case Noem v. Al Otro Lado, the Court quibbled about what “arriving at” or “arriving in” means in relation to U.S. asylum rights and treaty obligations. A majority of the Court assumed the tone of Justice Alito’s opinion in Jennings v. Rodriguez that emphasized Textualist reasons for mandating immigrant detentions of arriving aliens.

Looking to the text of the statute, in Jennings, Alito basically opined that “shall” means “shall” in the mandatory detention portion of the statute that referred to arriving aliens who have not yet received a credible fear interview. However, when the federal government reinterpreted the mandatory detention section of the statute to include presumably all undocumented immigrants to keep them detained potentially forever, immigration attorneys filed an unheard-of number of habeas corpus writs to vindicate the text of the statute as required by Jennings. Despite reports of widespread success, several orders of lower courts mandating release pursuant to the law have stalled out while higher courts decide whether the government can interpret potentially every undocumented immigrant as an arriving alien that “shall” be detained in the United States.[2]

In Zadvydas v. Davis, the Court avoided this statutory interpretation, because it found the prospect of potential indefinite or overly prolonged immigrant detention likely unconstitutional. As Jennings was able to dismantle Zadvydas sub silentio without explaining how the result was constitutional or not, it appears that Textualism’s nature as ad hocery cannot be tested until the Court is forced to decide a Textualist constitutional question as the Court faces in Barbara. The Court’s assertion of the shadow docket in Trump v. CASA, Inc. to freeze the benefits of potentially every American’s citizenship while the Court decides Barbara emphasizes Textualism’s ad hocery because yesterday’s Textualist reading does not matter today, and therefore today’s probably won’t matter tomorrow.

Thus, it does not matter what the Court’s Textualist interpretation becomes in Al Otro Lado, because the Court no longer sees its own precedent as final. The government will reinterpret the law however it wants to and it will win orders to stall immigrant release until the Court can decide, again, what the statute’s text says. The Court’s power to perpetually reinterpret law to accommodate radical shifts in the government’s interpretation of laws facilitates a potentially perpetual detention of immigrants despite long-settled precedent on the issue.

However, the Court’s revisiting of the Citizenship Clause’s words “subject to the jurisdiction thereof” in Barbara is particularly unsettling. Merely by litigating the issue, the President already vindicated his power to ignore what is a clear constitutional mandate backed by both Congress and the Court through the shadow docket in CASA. In other words, through litigating Barbara the President already managed to hold the basis of every American’s citizenship in perpetual suspense according to the Court’s ad hoc interpretations of constitutional text.

As clarified by Justice Thomas’s infamous Dobbs concurrence, this power can justify the degradation of potentially all rights previously protected by the Supreme Court in America. The way Thomas masterminded this, was by extending the so-called “slavery argument” from the Slaughter-House Cases by way of the Privileges or Immunities Clause. Doing this would potentially require the Court to overrule substantive rights decisions from Loving to Griswold to Obergefell, while breathing new life into Nineteenth Century abominations from Plessy to Cruikshank to Bradwell.

The Court in Barbara could avoid this by properly upholding United States v. Wong Kim Ark (the OG birthright citizenship case) as a rejection of the slavery argument, which it was. But the rub is that many appear to believe Wong Kim Ark interpreted the feudalism in Calvin’s Case, as though it were common law. In fact, the Plaintiff in Barbara claimed that Calvin’s Case was pure common law, and that it was extended fully in Wong Kim Ark as though Calvin’s Case was not corrupted by anti-American feudal law.[3]

The President deceptively pointed this error out in oral arguments only to contend that the Court should interpret Calvin’s Case as feudal-maxxing. That is, the President feels that all Americans, whether born in or out of the United States, should start out as enemy alien infidels rather than citizens. Nobody before the Court in Barbara contended for the proper rejection of the enemy alien infidel concept invented in Calvin’s Case according to the founding cases extended by Wong Kim Ark, and according to the First Amendment separation of church and state.

The potential for extreme irony is written on the walls, as the Barbara Court may upend the basis of Boyd v. Nebraska ex rel. Thayer in Wong Kim Ark’s departure from Dred Scott v. Sandford according to the dissents in Slaughter-House. In laymen-speak, the President’s apparent betrayal of Boyd in Barbara represents the destruction of white privileges so that all Americans will be treated as Black chattel slaves as though starting out as chattel was always America’s little hazing ritual when it was not. This travesty is the opposite of the intentions of the Thirteenth, Fourteenth, Fifteenth, and Nineteenth Amendments, and is, again, feudal-maxxing according to the abomination recently explored by Holly Brewer and myself by reviewing Grantham’s Case, to treat all Americans as though we were originally monsters owned by English lords.

To be sure, Calvin’s Case contains a radical, feudalistic distinction between alien friends and enemies that the Founders of the United States boisterously rejected.[4] In the decisive words of inaugural Justice of the U.S. Supreme Court, framer of the U.S. Constitution, and signatory of the U.S. Declaration of Independence James Wilson: “In ancient times, every alien was considered as an enemy. The rule, I think, should be reversed.”[5] Then Justice Wilson and his compatriots on the bench consciously initiated and constitutionally defended this reversal in several cases, beginning with Respublica v. Chapman, that limited the fledgling States’ sovereign powers to make all inhabitants then living in the colonies U.S. citizens according to rights of emigration, election, and expatriation.[6]

The problem potentially caused by embracing the so-called common law in Calvin’s Case with absolutely no discussion about how the founders ingeniously rejected Lord Coke’s feudalistic distinction of enemy aliens could be catastrophic.[7] The enemy alien distinction, which the President appears to want to unilaterally apply to all inhabitants in America without consulting the several States, is based upon religious belief that now violates the First Amendment. It was theoretically cured by several state treason statutes that made all inhabitants on or around July 4, 1776 citizens of the United States.

The Court’s failure to address the First Amendment and the Constitution’s prohibition of religious tests in Barbara is why Barbara almost certainly will not limit Chiles. The Court and the plaintiff’s counselors that practice before it, appear oblivious to the links between Barbara and Chiles. Yet, the President will almost certainly find the links useful if he wanted to extend his onslaught against immigrants to vulnerable non-straight and non-cis-gendered groups.

In the arguments of Barbara, there was absolutely no discussion about the nation’s original treason statutes, the First Amendment, or the founding rejection of Calvin’s Case as feudal law. Essentially the plaintiff and the President argued the same thing in reverse. According to them either feudalism is common law or common law is feudalism, and both left the Court to radically reshape America according to a magical third option that the Court may now divine between these artificial extremes invented by the parties to justify laws made by judicial fiat.

This strategy of divining bright line rules between binaries invented by the court was apparently invented by Justice Oliver Wendell Holmes, Jr. In his article, Law in Science and Science in Law, he showed the legal profession how to create a new law in the penumbra between any persistent extreme in human society, using the night and day in Massachusetts as an example.[8] But the law he made was not in statute or common law, but invented on an ad hoc basis that has, today, spread throughout the judiciary and is now destroying the Court itself by upending stare decisis and any basis the public has to trust that the decisions of the Court today will have any effect on the orders of the Court tomorrow.

My article inspired by Lulu Miller’s wonderful book Why Fish Don’t Exist at West Virginia Law Review can be consulted for more information regarding this topic.

Yours Respectfully,

Joshua J. Schroeder, Esq.

[1] Comptroller of Treasury v. Wynne, 575 U.S. 542, 574 (2015) (Scalia, J., dissenting); see Joshua J. Schroeder, Rethinking Rights in a Disappearing Penumbra: How to Expand Upon Reproductive Rights in Court After Dobbs, 54 N.M. L. Rev. 15, 17 (2024).

[2] Compare Bautista v. Santacruz, 2025 U.S. Dist. LEXIS 269220 (C.D. Cal. 2025), stay granted by 2026 U.S. App. LEXIS 6750 (9th Cir. 2026), with Buenrostro-Mendez v. Bondi, 166 F.4th 494 (5th Cir. 2026).

[3] Calvin’s Case (1608) 7 Co. Rep. 1a, 17a-17b (Eng.) (“All infidels are in law perpetui inimici, perpetual enemies (for the law presumes not that they will be converted, that being remota potentia, a remote possibility) for between them, as with the devils, whose subjects they be, and the Christian, there is perpetual hostility, and can be no peace.”), extended by Sir Thomas Grantham’s Case (1687), 3 Mod. 120, in John Baker, Sources of English Legal History: Public Law to 1750, at 453 (2024), explained by Holly Brewer, Creating a Common Law of Slavery for England and its New World Empire, 39 L. & Hist. Rev. 265, 804 (2021).

[4] 2 James Wilson, Collected Works of James Wilson 1048–49 (Kermit L. Hall & Mark David Hall eds., 2007).

[5] Id. at 1046.

[6] Joshua J. Schroeder, Embracing the Stranger Part One: How to use Trespass on the Case to Extend Rights to Foreigners, SchroederLaw, Working Paper No. 109 2026, at 24.

[7] 2 Wilson, supra note 4, at 1048–49 (noting the unanimous American rejection of Coke’s opinion in Calvin’s Case that was used to preclude the Americans of their common law rights); John Adams & Jonathan Sewall, Novanglus and Massachusettensis 177 (1819) (“[I]f we are not annexed to the crown, we are aliens, and no charter, grant, or other act of the crown can naturalize us or entitle us to the liberties and immunities of Englishmen.”); cf. id. at 115–17 (“But America was not vacant country; it was full of inhabitants; our ancestors purchased the land.”); Jeremiah Dummer, A Defence of the New-England Charters 11, 23 (1765) (noting that the Americans “fairly purchased their lands” unlike the Spanish conquistadors, the English planters “assured the Americans, that they did not come among them as invaders but purchasers”).

[8] Joshua J. Schroeder, The Dark Side of Due Process: Part I, A Hard Look at Penumbral Rights and Cost/Benefit Balancing Tests, 53 St. Mary’s L.J. 323, 339 (2022) (quoting Oliver Wendell Holmes, Law in Science and Science in Law, 12 Harv. L. Rev. 443, 457 (1899)).

Dear Reader,

Conversion therapy is a thinly veiled excuse for child abuse, kidnapping, and torture.[1] It exists alongside other eugenic projects newly coined “pro-natalism” by Silicon Valley tech-oligarchs including Sam Altman, Peter Thiel, and Elon Musk. The pro-natalism movement scapegoats America’s problems onto a declining birthrate to recast the elite tech-oligarch class as modern-day Jesus Christs ready to save America with newfangled technologies.

The complete absurdity of the entire pro-natalist movement, especially Elon Musk’s insemination of “a legion” of women to carry on his genes,[2] seems taken straight out of the pages of Robert and Michelle King’s cancelled-too-soon television show Evil. The self-idolatry these tech-giants propose makes technology humanity’s savior in the place of Jesus Christ. In fact, Peter Thiel recently took his apocalyptic lectures from San Francisco to the threshold of the Vatican in Rome to propose that the “anti-Christ” is basically anyone who opposes the spy technology services he is selling to the world for billions.

Beloved Bay Area author Anne Lamott once said: “[Y]ou can safely assume you’ve created God in your own image when it turns out that God hates all the same people you do.”[3] Lamott often compassionately included herself in the category of people who are tempted and sometimes fail to do better than projecting their own hatreds onto God. But Mr. Thiel seems to reach heights of blasphemy Lamott did not fathom. In a league of his own, Thiel is projecting hatreds that are backed with billions of dollars derived from oligarchical status few could imagine.

It is notable that Sam Altman and Peter Thiel are openly homosexual. Sam Altman and Peter Thiel are betraying their own community by supporting the pro-natalism that created conversion therapy to make all gay people either trapped in straight relationships, sterilized, castrated, or euthanized, all of which the Nazis did previously. The betrayal is especially decisive for Peter Thiel, as he apparently proves that German boys taken to America at a young age never had to learn a history lesson about the night of the long knives.

It is also notable that Elon Musk and Peter Thiel have immigration stories that point to the artificiality of the pro-natalist scapegoat of a declining birthrate as the cause of a panoply of American problems. The United States is, and has ever been, a nation of immigrants that has always counted on an influx of immigrants to enrich the nation.[4] As proven by economic studies (Clemens, Card), one of which won the Nobel Prize, it is extremely likely that the only way there is an existential crisis caused by a falling birthrate, is if there were a nationwide anti-immigrant program that artificially blocked out new talent, demand, ingenuity, culture, and perspectives from reaching our shores — a program like Trump’s mass deportation machine.

Therefore, the pro-natalist movement is actually a dystopian, nanny-state, big brother solution to a problem created by the government’s general exclusion of immigrants that began in 1924. It has obvious roots in the white supremacist Chinese Exclusion laws that began with the Page Act, an anti-miscegenation law.[5] The anti-miscegenation goals of the Page Act were extended domestically in the White Slave Traffic Act (a.k.a. the Mann Act) prior to the 1924 general expansion of the immigration law to all comers.[6]

Dave Chappelle recently called America’s attention to the White Slave Traffic Act in light of P. Diddy’s recent White Slave Traffic Act conviction. That law presumes that potentially the only thing wrong with trafficking a white woman is that it depreciates the woman’s value to the white men who own her.[7] Diddy violated an anti-miscegenation, pro-natalist, part of the immigration law, and it appears that his lewd and violent behavior with women was used as enough of a reason to keep around an odious law based in a history of bigotry, racism, and misogyny.[8]

The basic problem with these anti-miscegenation laws from the Page Act to the White Slave Traffic Act, is that they treat women as property in any case. The laws are not on the books to preclude the enslavement of women, if enslavement is defined as making a person into a chattel.[9] They were on the books to distance American institutions from their foundations in African American chattel slavery, while ensuring all women (potentially) were properly kept the chattel of white men through marriage, parentage, or employment.[10]

Such eugenic laws are still on the books and are being used in high profile cases as though they do not entirely undermine women-led social justice movements in America. Given the appearance that social justice advocates still generally support these laws through their “by any means necessary” style of advocacy, it is unsurprising that the Supreme Court decided that conversion therapy is a First Amendment protected viewpoint in Chiles v. Salazar. In Chiles, the Court seemed to think that abusing people with conversion therapy would be “the best means for discovering truth,” which can now be extended to protect renewed efforts at euthanasia and non-consensual sterilization for the purpose of discovering truth.[11]

Medical schools still teach facts learned from Nazi experiments done on live subjects that may not have been discovered otherwise. Is the truth a valid justification for these crimes against humanity? Chiles seems to think so.

Even after several authors confessed America’s shameful invention of eugenics that inspired the Nazis, the Supreme Court thinks eugenics offered as private services is valid. The Court appeared to think achieving patient goals were enough of a nod to consumerism to validate a judicial dispensation of State law.[12] However, there are a panoply of dangerous and life-threatening patient goals that medical doctors, psychologists and counselors are ethically and criminally barred from helping patients achieve.[13]

By using the First Amendment to erode the law’s ability to protect the public from quacks and worse, Chiles reveals the link between Justice Oliver Wendell Holmes, Jr.’s opinion in Buck v. Bell, and his importation of the “marketplace of ideas” ideology into America in Abrams v. United States. The individuals who the marketplace assists in discovering the truth are not ordinary Americans, and they certainly are not those who were designated as imbeciles and retards, like Carrie Buck. Judging from his horrific decision in United States v. Holte, Justice Holmes thought that experimenting on women in the lower classes, like Dr. Frankenstein did to his monster, was one of the basic benefits of interpreting the First Amendment as a bulwark for the marketplace of ideas.[14]

Thus, the fact that the First Amendment was not meant to protect fraudulent or violent speech is qualified in cases like Chiles and Buck to only safeguard the elite, to help them in their quest for the “truth.” The First Amendment protects fraudulent and violent speech that horrifically experiments on Black, brown, female, and homosexual Americans. That is the rule extended in Chiles.

The fact that the First Amendment is being remade into something that was only ever meant to benefit the elite should offend everyone and everything. Among other things, the Chiles ruling offends:

1. Federal jurisdiction, because the plaintiff’s claims were unripe and Colorado’s law was not a credible threat despite Chiles’ extension of the Court’s new and widely criticized hypothetical-gay-man-is-a-credible-threat jurisdiction from 303 Creative LLC v. Elenis;

2. The separation of powers, because Chiles’ holdings amount to judge-made law that extend prospective remedies that avoid the “credible threat” that the plaintiff would have experienced damages the Court imagined she would if the Court did not grant this relief, effectively preempting and superseding potential legislative and regulatory solutions that Colorado and/or the federal government might have devised;[15]

3. The prohibition on advisory statements for similar reasons;[16]

4. Federalism and the Ninth and Tenth Amendments for similar reasons;[17]

5. State sovereignty, for similar reasons, as more fully explained in Justice Jackson’s dissent;[18]

6. The anti-feudal common law mandated by the U.S. Constitution;[19] and

7. The First Amendment limitations explicitly named in Chiles that fraudulent and violent speech is unprotected.[20]

In Trump v. Barbara the Supreme Court has an opportunity to effectively deprive, or at least strictly narrow, the Court’s Chiles jurisdiction by properly interpreting United States v. Wong Kim Ark as a repudiation of the Slaughter-House Cases. The proper test that should have been applied in Barbara was given in McCulloch v. Maryland as recently extended in NFIB v. Sebelius to uphold most of Obamacare despite the traditional role of the states in regulating health law. But the parties in Barbara did not properly argue these issues or claim privileges and immunities imported from the law of nations to protect all inhabitants of the United States as they might have according to the analysis given in my three part series Embracing the Stranger.

Without an argument against it, we can expect the Court to keep building upon paradoxical feudalistic laws, as though feudalism were common law in America, to allow the President to dismantle immigration and naturalization laws while protecting the abuse and torture of non-straight people as therapy. In time, the Court may validate illegal deportation, repatriation, and immigrant detention as a First Amendment protected form of therapy, for the immigrants’ own good. Unless some striking leaders rise to help Americans change the course of human events, it is unlikely that the American public will adequately contend with the serious potential extension of Chiles to support euthanasia and non-consensual sterilization of disfavored groups as First Amendment protected speech in the hideous style of Virginia v. Black.

Yours Respectfully,

Joshua J. Schroeder, Esq.

[1] See Ferguson v. JONAH, 2019 N.J. Super. Unpub. LEXIS *1, *2 (2019).

[2] Mark 5:9; Luke 8:30.

[3] Anne Lamott, Bird by Bird 22 (1994).

[4] 2 Collected Works of James Wilson 1048 (Kermit L. Hall & Mark David Hall eds., 2007) (“‘The shutting out of aliens,’ says [Lord Hale], ‘tends to the loss of people, which, laboriously employed, are the true riches of any country.’” (quoting source omitted)).

[5] United States v. Bitty, 208 U.S. 393, 403 (1908) (holding that women could only be imported for moral purposes).

[6] 8 U.S.C. § 1557; 18 U.S.C. §§ 2421–2424.

[7] Caminetti v. United States, 242 U.S. 470, 490 (1917) (following Bitty to describe the transport of women as though they are property rather than people even when the laws are followed); see United States v. Holte, 236 U.S. 140, 145 (1915) (holding women criminally liable for conspiring in the crime of interstate travel for immoral purposes). The Justice Department website suggests that Holte was cured by Gebardi, but this suggestion reveals how the Justice Department failed to conceive of the main problem in both Holte and Gebardi. The primary problem in both cases is that the Mann Act presumes women are the chattel of white men, and this was not cured, changed or modified by Gebardi’s improvement of protecting women from being charged with conspiracy in the process of their own enslavement. Archives: U.S. Dep’t of Justice Webpage, 2027. Mann Act, https://www.justice.gov/archives/jm/criminal-resource-manual-2027-mann-act (last accessed on Apr. 7, 2026).

[8] United States v. Combs, slip op., 24-CR-542, at 14–15 (S.D.N.Y. 2026). Cases such as Diddy’s sometimes emphasize the “dominant purpose” intent that Courts have inferred into the Mann Act as curative of the constitutional issues with the law. Id. at 13; but see United States v. Flucas, 22 F.4th 1149, 1166 (9th Cir. 2022) (Bybee, J., dissenting). But the issue of intent does not even touch the structural problem of immigration enforcement investigating U.S. citizens traveling within the country or the issue of whether Congress unconstitutionally made women property by statute, which should be tended to more carefully now that the President is occupying localities throughout the nation with ICE officials who have assassinated U.S. citizens including Alex Pretti and Renée Good. Combs, 24-CR-542, at 10–11 (noting that potentially any statute that designates interstate transportation of contraband is constitutional despite the fact that the contraband transported here are people, not contraband).

[9] See Gebardi v. United States, 287 U.S. 112, 121 (1932) (“Congress set out in the Mann Act to deal with cases which frequently, if not normally, involve consent and agreement on the part of the woman to the forbidden transportation.”).

[10] See Lorelei Lee, The Roots of “Modern Day Slavery”: The Page Act and the Mann Act, 52 Colum. Human Rights L. Rev. 1199, 1238 (2021).

[11] However unlikely, Chiles could potentially reverse Diddy’s sex crimes. Combs, 24-CR-542, at 11–13 (noting the denial of Diddy’s First Amendment arguments prior to the Supreme Court’s decision in Chiles). In cases like Brandenburg v. Ohio, National Socialist Party v. Skokie, Virginia v. Black, and Snyder v. Phelps, the Court seemed to relativize viewpoint protection to the point where the genocidal viewpoints of Nazis, the KKK, and religious fundamentalists became First Amendment protected speech.

[12] Chiles v. Salazar, slip op., No. 24-539, at 4 (2026). Such dispensations of the law were anciently reserved to the chief executive, i.e., the king, who was allowed to dispense with wrongs—a power that caused a constitutional crisis that ended when William & Mary deposed King James II in an event known as the Glorious Revolution of 1688. Sir John Fyneux on Dispensations (1495), Sir Walter Raleigh’s Case (1605), Thomas v. Sorrell (1674), Godden v. Hales (1686), and Sir Thomas Grantham’s Case (1687), 3 Mod. 120, in John Baker, Sources of English Legal History: Public Law to 1750, at 91–100, 453 (2024); see Holly Brewer, Creating a Common Law of Slavery for England and Its New World Empire, 39 L. & Hist. Rev. 765, 804 (2021).

[13] Bad doctors and big pharma regularly face harsh prison sentences for running pill mills that made billions for drug companies who developed and sold Fentanyl and Oxycodone among other addictive drugs.

[14] Joshua J. Schroeder, Pure//Evil Part One: How Evil is Popularized as Truth in the Marketplace of Ideas, 59 UIC L. Rev. 58, 196 (2025) (addressing how the marketplace of ideas ideology facilitates tyranny).

[15] Conversion therapy bans are not a credible threat to First Amendment protected speech, because conversion therapy is not being regulated as a viewpoint, but as a therapy. Thereby, there is no risk to the prior restraint of the plaintiff’s expression of her apparent viewpoints that homosexuality is a sin, or a crime, or an abomination, because she can fully express these viewpoints still, even to her clients—because conversion therapy is not the expression of these viewpoints. Conversion therapy is an attempt to thwart homosexuality through what is widely considered fraud, torture, and abuse based on junk science. Moreover, through the groundbreaking explorations of Heather Gay in the context of the Mormon Church, it appears that conversion therapy facilitates and covers up widespread abuse and rape of boys and girls within the structures of religious institutions in America.

The fact that the Supreme Court found that Colorado’s conversion therapy ban is a “credible threat” does not change the fact and reality that it is not, which is an existential problem for the Court. The Court should try to address this problem, because when the Court previously entered such a delusive state of decision-making Chief Justice Taney issued Ableman v. Booth, ordering Wisconsin to comply with the Supreme Court’s decision to uphold the Fugitive Slaves Act of 1850. Soon thereafter, Ableman was embarrassed by Congress’s repealing of the Act on June 28, 1864 as an abomination and embarrassment to the American concept of liberty. The Roberts Court may soon find itself the butt of Congress and States’ agreement that Chiles is the real abomination here, because the regulation of professions is not a viewpoint regulation even if it incidentally regulates speech-as-therapy. Chiles, No. 24-539, at 9–10 (Jackson, J., dissenting).

[16] Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 614 (1952) (Frankfurter, J., concurring) (citing Jay Court precedent as the proper basis to preclude the Court from providing a gloss on the constitution that life is meant to provide). The Chiles Court followed the recent advisory statements of the Supreme Court in 303 Creative LLC v. Elenis, Seila Law LLC v. CFPB, NLRB v. Noel Canning, and probably other cases that were derived from a bastardization of Justice Frankfurter’s opinion in Youngstown that may later be narrowed and distinguished according to their deficient facts and clearly erroneous interpretation of Frankfurter’s opinion. The Chiles Court followed 303 Creative LLC v. Elenis to issue what appears to be an advisory opinion about fines and penalties Colorado might have, but did not, pursue against the plaintiff. To get around the ripeness bar to jurisdiction, the Court found that the Colorado law was reviewable as a “credible threat” against the plaintiff’s free speech rights.

[17] The Chiles Court transformed the First Amendment into a safe-harbor to avoid the risk of incurring civil penalties and fines related to prohibited speech in the course of regulated professional conduct. Though speech may be encompassed in regulated professional conduct, the risk of fines and penalties for engaging in prohibited professional conduct that may include certain forms of speech is only applicable as regulation of professional conduct to which speech is entirely incidental. The Colorado law did not censor speech as speech, which Justice Jackson appeared to believe should have been the deciding factor according to her dissent. Chiles, No. 24-539, at 9–10 (Jackson, J., dissenting).

[18] Chiles, No. 24-539, at 1 (Jackson, J., dissenting) (“‘[T]here is no right to practice medicine which is not subordinate to the power of the States.’” (quoting Lambert v. Yellowley, 272 U.S. 581, 596 (1926))). In the context of professional regulation, where wrongs tend to be malum prohibitum, the State usually has the sovereign power to dispense with wrongs on a case-by-case basis. Colorado appeared to have dispensed with penalizing the plaintiff’s wrongs in Chiles, at least for the time being. By issuing an advisory opinion to decide what would happen if Colorado decided to penalize the plaintiff in Chiles, the Court violated the State’s sovereign power to regulate professions including the decision of how and when to enforce its regulations.

[19] Chiles dispensed of risks of incurring civil penalties for malum prohibitum, i.e., human made wrongs, by interpreting penalties for engaging in unlawful professional conduct that may involve speech as regulation of a First Amendment protected viewpoint. This apparent usurpation of the State’s sovereignty was not cured by the plaintiff’s claim in Chiles that the plaintiff was helping her patients achieve their own goals. For one, the plaintiff’s patients are likely minors who have not become self-sufficient and necessarily depend upon adult guardians for their survival. The goals of patient minors may merely be the goals of their parents who may not, and likely do not, represent the actual goals of minor patients.

In the category of licensure cases of which Chiles is a part, the Court usurped State powers to dispense with malum prohibitum wrongs by prospectively dispensing with potentially an entire category of wrong that was prohibited by the legislature of Colorado. This kind of prosecutorial discretion that sits in the executive branch of the state and federal governments was derived by the king’s discretion in England as the chief executive, which eventually created a constitutional crisis in England symbolized by Godden v. Hales. In Chiles, the Court, rather than the executive, exerted the power of the king, or other chief executive, by dispensing with malum prohibitum wrongs involving a state license. The Court’s exertion of the powers of a king is therefore extremely suspect under the anti-feudal U.S. Constitution and U.S. Declaration of Independence.

[20] Chiles, No. 24-539, at 9 (“[T]his Court has recognized a ‘few historic and traditional categories of expression long familiar to the bar’ where content-based restrictions on speech will not automatically trigger strict scrutiny—categories that include fraud, defamation, and ‘fighting words.’ United States v. Alvarez, 567 U.S. 709, 717 (2012) (plurality opinion).”).

Dear Reader,

Contrary to popular belief, the existence of the so-called “shadow docket” does not trace back to a law, regulation, precedent, or constitutional provision. Rather, the “shadow docket” is a rhetorical device deployed by legal commentators to criticize the arbitrary and apparently lawless behavior of the Supreme Court of the United States (“SCOTUS”). It is a present-day version of the “chancellor’s foot” that exists in the genre of provocative critique à la The 1619 Project.

The term “shadow docket” was first invented in a 2015 law review article written by Professor William Baude.[1] According to Baude, his part in creating a memorable pejorative for the equity docket was his particular reaction to the 2013 SCOTUS Term. As Baude reported: SCOTUS in 2013 was a total bore; Burwell v. Hobby Lobby “was not even a constitutional case”; the whole affair was “a fizzle rather than a bang.”[2]

With a yawn loud enough to disturb Hannah Arendt from her slumber, Baude implied that banal topics should be left alone and that he was the proper aesthetic judge of what is banal.[3] Baude’s criticism of Hobby Lobby as humdrum, was his way of refusing to disturb the decision in Hobby Lobby with his criticism of the shadow docket. Thus, Baude critiqued Wheaton College v. Burwell as bad “shadow docket” behavior, while using claims of banality in an attempt to stave off any fallout arising from his critique to the law decided in Hobby Lobby.[4]

Baude was justified in criticizing the Wheaton College injunction as shadow docket meddling even if his reports of boredom can now be read as tongue-in-cheek. Others, including myself,[5] were slow to begin criticizing the corruption of equity in the Supreme Court as “shadow docket” behavior.[6] Part of the reason for the delay has been that not everyone agrees with Baude’s apparent underlying belief that the Supreme Court’s equitable power is tantamount to a god-like sovereign prerogative power to issue “lightning-bolts” from on high.[7]

The constitutional limits of the American system require that equity is administered after laws are made, whether by statute or common law, to ensure cohesion with the higher laws, rights, obligations, and privileges enumerated in the constitution.[8] The very fact that American governments are limited governments by design, and that the Court’s equity is charged with the duty of enforcing those limits, calls into question Baude’s whole commentary about judicial equity being an unlimited prerogative power. Nevertheless, it appears that many jurists, like Baude, believe that the royal prerogative is alive and well in every branch of U.S. government.

The fact that Baude is one of Chief Justice Roberts’ former clerks might allow us to infer that this is how Roberts sees judicial power. Equity is vested in the Court through a statute and limited by the constitution, but the Court has overreached, time and again, tracing back to the antebellum in-chambers issuance of habeas corpus in Ex parte Merryman.[9] America’s most illogical and self-contradictory jurist, Chief Justice Roger B. Taney, issued an opinion accusing President Lincoln of king-like tyranny from chambers to justify the release of a terrorist suspect without argument, opinion, process, precedent, or law.[10] The Civil War began in earnest only after Taney ensured that there was no possible way to peacefully resolve the nation’s differences in Court.[11]

The Reconstruction Court repeated this error in Griffin’s Case, where Chief Justice Chase reversed the issuance of a habeas corpus writ to release a Black man convicted for assault with intent to kill by a Confederate Judge during the Civil War, who refused to take an oath of loyalty to the United States after the Civil War.[12] In Griffin, Chase denied the writ without argument, opinion, process, precedent, or law according to an opinion that solely focused on the potential unfairness to the Confederate judge who might have lost his job otherwise.[13] The Court bent itself into pretzel shape to extend job security rights to Southern traitors at the expense of the fundamental rights of Southern Black patriots to freedom.[14] This was how the “shadow docket,” used here as shorthand for equity-corruption, survived beyond the Civil War.

By the time Chief Justice Taft introduced the writ of certiorari as the primary method of Supreme Court review, the shadow docket was already well-established in America.[15] Thus, Professor Steven Vladeck’s wonderful analysis of later shadow docket activity is not reliable as to the origin story of the shadow docket. Nevertheless, Vladeck’s book about the shadow docket remains an indispensable resource that covers mid-Twentieth Century shadow docket corruption.

The shadow docket officially began in Baude’s law review article, and the equity-corruption it refers to, began, or at least culminated first, in Merryman. This means that the Court’s liberal and open-ended ability to review habeas corpus under § 14 of the Judiciary Act of 1789, now known as the All Writs Act, codified at 28 U.S. § 1651, seems to have been corrupted to reshape the equity docket into a shadow docket.[16] It appears that the Suspension Clause, of all things, may have protected the Court’s power to be evil in the Arendtian sense of that word.

One more sidelight might help to illuminate this origin story. If the shadow docket is short hand for equity corruption, then it exists at every level of the Court that has equitable power—not merely at the Supreme Court level. My scholarship eventually embraced the general definition of the shadow docket as short hand for equity corruption at potentially every level of the federal and state courts as symbolized by Merryman and Griffin.[17] But my original piece addressing the equity docket that also reviewed the 2013 Term did not attack the equity docket as Baude had done.[18]

Unlike Baude, I thought the entire 2013 Term, which I had read in its entirety, was revelatory.[19] Thus, on the outset of my legal career, I drafted and distributed what I then labeled the Equity Memorandum to warn the legal profession of the Supreme Court’s radical trajectory in 2013.[20] This Equity Memo was later published in its entirety under the title America’s Written Constitution, which emphasized the role of equity in securing the promises of Marbury v. Madison according to the Court’s duty to say what the law is—a duty that Baude and his ilk have dangerously taken for granted.[21]

Yours Respectfully,

Joshua J. Schroeder, Esq.

[1] William Baude, Foreword: The Supreme Court’s Shadow Docket, 9 N.Y.U. J. L. & Liberty 1, 5 (2015); Stephen Vladeck, The Shadow Docket xii (2023) (noting that “[i]t was William Baude, a conservative constitutional law professor at the University of Chicago (and former law clerk to Chief Justice John Roberts), who first used the term ‘shadow docket’ as an evocative shorthand”).

[2] Baude, supra note 1, at 3 (concluding that “the term’s cases were not as dramatic or far-reaching as in previous years”).

[3] Id. (claiming that the judgment came from “observers” and not himself); but see Joshua J. Schroeder, America’s Written Constitution: Remembering the Judicial Duty to Say What the Law Is, 43 Capital U. L. Rev. 843, 846 (2015) [hereinafter Schroeder, America’s] (noting “a radical reformative discussion of fundamental judicial rules” in the 2013 Term cases).

[4] Baude, supra note 1, at 7. Days after Hobby Lobby decided that for-profit corporations have religious liberty rights to refuse paying for contraceptive coverage, Wheaton College successfully applied for and received an injunction from the Supreme Court allowing a corporate religious liberty right to obstruct its employees from receiving contraceptive coverage. This injunction allowed a private corporation to effectively nullify legal provisions designed to secure statutory rights to contraceptive medical care. The decision in Hobby Lobby did not grant Hobby Lobby the power to nullify the laws, but the decision to allow a for-profit corporation a religious exemption from paying for contraceptive coverage was premised on the assumption that statutory provisions directing the federal government to pick up the tab, left by exempted corporations, would not be effectively nullified by the same class of corporate religious rights.

In Wheaton College, ostensibly the same corporate religious rights at play in Hobby Lobby were extended without argument, process, decision, precedent, or law to enforce a corporation’s willful obstruction of the statutory and regulatory provisions that were designed to secure contraceptive coverage of employees not covered by religious employers. There was no law, no precedent, no argument, no process, and no opinion to justify the activism done in Wheaton College. This was the beginning of the derailment of stare decisis with ad hoc decision-making now symbolized by the “shadow docket” pejorative invented by Baude.

Several decisions after Wheaton College similarly drew Cooper v. Aaron into question by facilitating the nullification of law and precedent without argument, process, decision, precedent, or law. In Whole Woman’s Health v. Jackson, the Court nullified Roe v. Wade before it was overruled through the equity docket. In CASA Inc. v. Trump, the Court nullified United States v. Wong Kim Ark unless or until each individual U.S. Citizen sues to protect their own citizenship, while it effectively issued a universal injunction to deny relief to a nationwide class in DHS v. D.V.D. pending litigation. And finally, in Cook v. Trump, the President asked SCOTUS to allow him to define “due process” as posting on Truth Social, a social media company the President owns, and allowing Lisa Cook to respond on Truth Social as her constitutionally mandated opportunity to be heard regarding her removal from the Federal Reserve Board.

This line of cases call for a deeper review than is possible in this article. Despite the fact that each of these decisions are classic shadow docket shenanigans, the legal issues they involve go wide of the present topic of the origins of the shadow docket. Therefore, more about the Lisa Cook case, the future of administrative due process in America, internet freedom, Religious Freedom Restoration Act case law, and the nullification crisis and potential destruction of Cooper v. Aaron will be addressed in forthcoming content here at Everything at Issue.

[5] See, e.g., Joshua J. Schroeder, The Dark Side of Due Process: Part II, Why Penumbral Rights and Cost/Benefit Balancing Tests Are Bad, 53 St. Mary’s L.J. 649, 655 (2022) [hereinafter Schroeder, The Dark].

[6] See generally Vladeck, supra note 1.

[7] Baude, supra note 1, at 51, 55 (citing John Harrison, Pardon as Prerogative, 13 Fed. Sent’g Rep. 147 (2001)).

[8] See, e.g., Luther v. Borden, 48 U.S. 1, 52 (1849) (Woodbury, J., dissenting) (“Constitutions and laws precede the judiciary, and we act only under and after them, and as to disputed rights beneath them, rather than disputed points in making them.”).

[9] Ex parte Merryman, 17 Fed. Cas. 144, 145 (C.C.D. Md. 1861) (Case No. 9,487) (noting how “a writ of habeas corpus was issued by the chief justice of the United States, sitting in chambers”), explained by Seth Barrett Tillman, What Court (if any) Decided Ex parte Merryman?—A Correction for Justice Sotomayor (and others), 13 Br. J. Am. Leg. Studies 1, 17–18 (2024).

[10] Merryman, 17 Fed. Cas. at 150–51 (comparing President Lincoln with Charles I who was beheaded as a tyrant and citing the laws of Charles II as the apparent basis of American habeas corpus review); cf. Chambers v. Florida, 309 U.S. 227, n.10 (1940) (critically, tracing the legal lineage of the American Suspension Clause to anti-feudal English sources prior to the statute Merryman relied upon for justification).

[11] See generally Dred Scott v. Sandford, 60 U.S. 393 (1857).

[12] Griffin’s Case, 11 Fed. Cas. 7, 8 (C.C.D. Va. 1869) (Case No. 5,815).

[13] Id. at 9, 27 (noting that the writ of habeas corpus was to be issued by the Chief Justice of the Supreme Court “sitting at chambers”).

[14] Id. at 20 (defending the rights of Mr. Griffin’s judge to make a living as a treasonous judge in America based upon the laws of British conquest (citing Campbell v. Hall (1774) 98 E.R. 1045 (Eng.))); id. at 22 (noting that the appeal of the grant of habeas corpus was made by a Confederate Judge Sheffey in the underlying case, whose lawyers were allowed to argue that British feudal law justified the destruction of a Black man’s rights in the South and it worked). It is a complete mystery why Baude, Tillman, and Vladeck who all apparently disagree with each other regarding the Court’s recent interpretation of Griffin’s Case in Trump v. Anderson did not address the radical, royalist, treasonous, and racist bases for denying Mr. Griffin habeas corpus relief.

[15] Vladeck, supra note 1, at 29.

[16] Merryman, 17 Fed. Cas. at 147 (“The application of this case for a writ of habeas corpus is made to me under the 14th section of the judiciary act of 1789 [1 Stat. 81], which renders effectual for the citizen the constitutional privilege of the writ of habeas corpus.”)

[17] See, e.g., Schroeder, The Dark, supra note 5, at 655.

[18] Schroeder, America’s, supra note 3, at 836, 859 (addressing the concept of feigned legal positivism that took hold during the 2013 Term only to be dramatically ripped away by the Wheaton College injunction).

[19] Id.

[20] Id. at 833 n.*.

[21] Compare id., with Baude, supra note 1, at 1.

Dear Reader,

The first law review article I published was about secondary copyright liability, so this one feels a little bit personal. When I wrote Choosing an Internet Shaped by Freedom, Aaron Swartz was still alive. Back then, there was reason to hope that the Court and Congress would co-navigate the overlapping public interests in a free and open internet addressed by the Digital Millennium Copyright Act (“DMCA”), the Telecom Law of 1996, and Net Neutrality Rules.

With Cox v. Sony ending the DMCA as we know it, that hopeful era is officially over. In Cox, the Court seemed to imply that the judiciary may destroy any reform Congress might make to the DMCA, should Congress try to save it. Cox reads as though Congress was to blame for relying upon the Court’s maintenance of common law case law, which is like blaming Congress for assuming the Court would manage itself.

In other recent cases, the Court conversely attacked Congress for overreaching on separation of powers bases. According to the Court, Congress is damned if it legislates and damned if it doesn’t. But the constitution designates Congress as the branch of government charged with vesting the judicial power in one Supreme Court, and so Congress could theoretically tighten the screws on the Court. The Court in Cox and other similar cases is, therefore, tempting permanent, irreversible changes to its power and structure through statutory reform.

Congress may find that it cannot save the DMCA by merely defining what secondary liability it deems appropriate, because secondary liability is derived from the common law the Court attacked in Cox. The Court’s “Originalists” have no basis for attacking the common law that pre-exists the Patent & Copyright Clause. The Patent & Copyright Clause originally derived from the Case and Statute of Monopolies in England that sought to secure the common law right of life through statute and the writ of trespass on the case.

Following in this tradition, Phillis Wheatley vindicated her common law rights in her famous trial in 1772 Boston. According to the resulting attestation that was published in her books, she won the common law right to take credit for writing a book that later became world famous, launching her global career as a revolutionary author. Wheatley’s common law right of life, as vindicated in Boston, and secured by the Stationer’s Company in London, provided critical sidelights in the ongoing common law trespass on the case disputes then occurring in the English cases Millar v. Taylor and Donaldson v. Becket.

The very origin of copyright law in America is the common law. Therefore, it was natural for the DMCA to presuppose that the Court would continue to adjudicate secondary common law copyright infringement claims. Thus, the DMCA created a safe-harbor to internet companies as long as they maintained a compliant take-down system when copyright owners alerted the companies of infringing material posted or shared by users. Cox v. Sony demolished the potential of other bases for secondary copyright litigation beyond the cases already decided.

The DMCA’s safe-harbor relied upon the idea that the Court would allow broad litigation of common law secondary liability. Now, without the incentive created by potential litigation at common law, the DMCA safe-harbor appears to be impotent. The Court appeared to circumvent the DMCA by artificially limiting common law secondary liability to two circumstances: (1) when the product or service sold is only useful for infringement; or (2) when a party induces another to commit infringement.

Many lawyers, like myself, are paid to explain to clients what this practically means regarding take-down procedures and liability risks. But, here, the common law foundations of the statutory law are ruptured. Some are guessing that this will result in more suits against individual internet users. But this only takes into account the copyright layer of internet regulation. There are at least two other layers of 3-D chess being played here.

Cox could be extended to upend Section 230 of the Telecom Law (the legal safe harbor that was said to have created the internet). Logically, this is possible, but unlikely in real politick. A more likely change that Cox portends is a further drift from the common law decision in Kyllo v. United States, toward the dragnet internet surveillance systems first exposed by Edward Snowden.

This is not to say that the Court’s current drift is legal positivist or dogmatically anti-common law. As much as Justice Thomas artificially denied the common law in Cox, in other opinions Thomas waxed poetic about common law common carrier bases to expand upon the regulation of internet providers. His real ambition for common law bases for internet regulation appears to coincide with Brenden Carr’s recent threats of stripping television companies of their broadcast licenses.

These ambitions actually confuse the American common law with British feudalism—a topic recently explored by Legal Historian Holly Brewer and myself. According to Thomas v. Sorrell and Godden v. Hales, restrictions on licenses, including broadcast licenses, may be dispensed with by the Crown in England, because violations of licenses are human made wrongs or artificial crimes (malum prohibitum). This line of cases arose from a genre that caused the English Civil War, was intended to be corrected by intellectual property common law rights of life (the exact portion of common law discussed here),[1] and yet was erroneously repeated in a way that caused even the royalists to admit that the king’s wild dispensations of the law violated the Rule of Law.[2]

In England, the line of licensure cases that culminated in Godden is styled as common law, but in America it is considered illegitimate feudal law. The idea that Justice Thomas can now, at this late date, reintroduce the paradox of common law feudalism to America as though it had always existed in America is a travesty of travesties. The idea that the FCC can use royal dispensation as a basis for reshaping the internet according to the political ambitions of the current party in power potentially upends the entire concept of public property vindicated in Carol Rose’s idea about The Comedy of the Commons.

The very bases of administrative regulation in Rose’s theories are being challenged, ruined, and reshaped by a radical Supreme Court. The front-lines of the Court’s royalist leanings are wonderfully covered by Holly Brewer’s reporting and research regarding cases like Trump v. United States. Here, in this article and in general at Everything at Issue, I hope to provide useful sidelights on such front-line efforts by giving in depth review of what Justice Story coined the metaphysics of the law. In this, I consciously follow in the footsteps of Phillis Wheatley who similarly illuminated James Otis’s front-lines approach in Paxton’s Case from her seat in “the Bottomless Profound”[3] whence she gave the revolution life through copyright law’s origins in her very own common law right of life.

Yours Respectfully,

Joshua J. Schroeder, Esq.

[1] 3 Edward Coke, Institutes 181–83.

[2] Sir John Fyneux on Dispensations (1495), Sir Walter Raleigh’s Case (1605), Thomas v. Sorrell (1674), Godden v. Hales (1686), and Sir Thomas Grantham’s Case (1687), 3 Mod. 120, in John Baker, Sources of English Legal History: Public Law to 1750, at 91–100, 453 (2024); see Holly Brewer, Creating a Common Law of Slavery for England and Its New World Empire, 39 L. & Hist. Rev. 765, 804 (2021).

[3] Kenneth Silverman, Four New Letters by Phillis Wheatley, 8 Early Am. Lit. 257, 264 (1974).