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 and magical 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 ostentation of the 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).

Dear Reader,

For around a century, American attorneys were taught that the gold standard of legal practice was Oliver Wendell Holmes, Jr.’s crystal ball. We were taught to transmute the power of the secular prophet into cold, hard cash; to read judicial opinions like tea leaves in exchange for worldly rewards. Those of us who can read the proverbial writing on the wall can profit from playing prophet.

But the path of the prophet is often challenged by black swans. Black swans are world changers we don’t see coming. They are anomalies that exasperate and delight us with an endless capacity for surprise. Look around. The evidence is everywhere. We are living in a world made by black swans.

Like Eve Babitz who disputed Joan Didion’s doom prophecies, black swans are the “freakish, beautiful outsiders”[1] who endeavor to unsettle our fated dooms. When they manage to inspire others to sublime pleasure, causing a potential disruption of the standing order, black swans “[b]ecome art, not decoration.”[2] In Hollywood, especially, the self-enchantment of world changing art was always challenged, but never defeated by our “ever-present fear[s] of total disaster (earthquakes, fires, random murders).”[3]

The dooms we long to resist and the hopes we dream to chase are linked at the hip. Yet, the prognostications of doom that are presently flooding into America from all the world are beginning to grate. Perhaps the doomsayers ought to hush and make space to wonder about the many Babitzian black swans presently flying up from the ashes — conspicuous — aflame.

To spot a black swan before it changes the world is merely the tearing of a secular veil in order to see what is underneath. Revealing a modern-day Babitz as she takes flight, like Natalie Portman depicted above, may paradoxically interrupt her nature as a black swan. But it may also help her survive by emphasizing or even facilitating her actual nature as a phoenix, muse, or some other characteristic of greater importance.

Eventually, the tearing of such veils in the public discourse may be revealed as the very reason why the Supreme Court is presently tearing up its own institutional foundations. The sacrilege currently spewing out of the Court may simply be its attempt to get back to basics—the “original” plan according to them. The offerings of Everything at Issue will flow comfortably through the Court’s radicalism in 2020s and beyond by exposing black swans to public discourse.

Public discourse is welcome in this space, including respectful disagreement and civilized argument. Any content placed here will be intended to enhance the public discourse occurring in other spaces. Some content may plug or refer to other works I have written or contributed to, but all works created or published by me are solely in the public interest.

I have not, individually or as the writer and curator of Everything at Issue, profited from or been the recipient of research grants or any other institutional profit incentive program. I am not affiliated with any agenda-driven outfit, news organization, political party, or educational institution. I am completely independent and all my views are my own.

I own and run a virtual law firm SchroederLaw currently based in Hollywood, California. I anticipate that disclosure of client interest will be rare. However, if for any reason I comment about a SchroederLaw client’s matter, or a matter that a client has an interest in, I will disclose the fact of the interest in the content. I do not publicly comment on client matters or matters related to my clients’ interests without informed written consent, and only when it is in the interest of my clients to do so.

Yours Respectfully,

Joshua J. Schroeder, Esq.

[1] Eve Babitz, Black Swans : Stories 195 (1993).

[2] Id.

[3] Id. at 50–51.