The Immigration Shadow Docket

By: Faiza W. Sayed

Consequences and the Supreme Court

By: Aaron Tang

The Misunderstood History of Textualism

By: Tara Leigh Grove

The Counterdemocratic Difficulty

By: Aziz Z. Huq

Defining Interim Storage of Nuclear Waste

By: Max Johnson

Privacy's Rights Trap

By: Ari Ezra Waldman

Defining Interim Storage of Nuclear Waste

By: Johnson, Max | January 22, 2023

Nuclear power may be humanity’s best hope to curb climate-altering greenhouse gas emissions. But public fear of its dangers, including the toxicity of nuclear waste, undermines its expansion. To provide for more effective waste disposal, in 2021 and 2022 the Nuclear Regulatory Commission (NRC) recommended licensing two privately-owned nuclear waste storage facilities—called Consolidated Interim Storage Facilities (CISFs)—to be built in New Mexico and in Texas. Both states vehemently oppose the construction and operation of these facilities: legislators in both states have proposed state laws opposing them, and both states have sued the NRC challenging the legality of the facilities’ licensure.

There is no doubt that an effective waste solution is sorely needed for nuclear power to reach its full potential. But while consolidated, above-ground storage may play an important role in the development of long-term nuclear waste disposal, establishing such a program at the cost of state and public enthusiasm is a long-term mistake. Informed by an analysis of the history of nuclear power and the difficulties inherent in nuclear waste disposal logistics, this Note argues that the NRC’s licensure of the CISFs as “interim” storage facilities contradicts the meaning of that word, and therefore these licensing actions fall outside of the NRC’s regulatory bounds. In doing so, this Note provides a legal argument that New Mexico and Texas—and future parties opposing similar facilities—may utilize in their suits against the NRC. This Note then proposes specific steps that a court may require to ensure that the NRC applies the word “interim” as it is defined.

The Counterdemocratic Difficulty

By: Huq, Aziz Z | January 22, 2023

Since the 2020 elections, debate about the Supreme Court’s relationship with the mechanisms of national democracy has intensified. One important thread of that debate focuses critically on the possibility of a judicial decision flipping a presidential election or thwarting the will of national majorities respecting progressive legislation, and pushes concerns about the Court’s effect on national democracy. A narrow focus on specific interventions, however, does not exhaust the subtle and consequential ways in which the Court influences whether and how the American democratic system thrives or fails. A narrow focus is partial because it construes democracy as merely the aggregation of specific acts or moments, not a complex system made up of electoral institutions, the rule of law, and parties disposed to accept electoral loss.

This Article offers a new analysis of the relation between judicial power and the quality of American democracy. This account is nested in a wider, systemic perspective accounting for both political and economic forces. Drawing on recent empirical work in political science and economics, this Article situates the Roberts Court at the nexus of three intersecting “long crises” of American democracy. The first is the democratic deficit embedded in the Constitution’s original 1787 design. The second is a sharp increase in wealth inequality since the 1970s. The third is the more recent reemergence of a sometimes violent “white identity politics” as a rift starkly bisecting the electorate. The fragility of American democracy arises from an untimely confluence of these three forces, which until now have been unfolding along separate tracks at different tempos.

The Roberts Court arbitrages between these three counterdemocratic dynamics in ways that impose considerable pressure on the inclusive norms and representative mechanisms through which democracy works. Four lines of precedent merit attention in understanding the convergence of the “long” crises of democracy. These (1) guarantee economic capital, but not associations, a political return; (2) gerrymander civil society by rewarding hierarchical, but not egalitarian, mobilization; (3) facilitate a pernicious form of white identity politics; and (4) undermine electoral and nonelectoral foundations of democratic rotation.

Through these lines of jurisprudence, economic, social, or cultural capital is parlayed into disproportionate political power. This doctrine hence entrenches such power into a form of durable incumbency. These decisions, in other words, “encase” extant distributions of economic and sociocultural power from democratic challenge. Drawing out these elements, this Article maps out the “counterdemocratic difficulty” of judicial review as presently employed.

The Misunderstood History of Textualism

By: Grove, Tara Leigh | January 22, 2023

This Article challenges widespread assumptions about the history of textualism. Jurists and scholars have sought for decades to distinguish “modern textualism” from the so-called “plain meaning school” of the late nineteenth and early twentieth centuries—an approach that both textualists and non-textualists alike have long viewed as improperly “literal” and “wooden.” This Article shows that this conventional historical account is incorrect. Based on a study of statutory cases from 1789 to 1945 that use the term “plain meaning” or similar terms, this Article reveals that, under the actual plain meaning approach, the Supreme Court did not ignore context but looked to surrounding text and structure to determine if an operative text was clear. The Article also offers an intellectual history, showing how in the early twentieth century, legal realists and legal process theorists created the myth of a “literal” and “wooden” “plain meaning school.” More surprisingly, modern textualists later accepted this account—a decision that, this Article suggests, had an important impact on the development of textualism. To distinguish their brand from (what they saw as) the “literal” old plain meaning school, modern textualists defined “textualism” so capaciously as to create the conditions for divisions within textualism that we see today. This Article not only clears up a historical misunderstanding but also has two broader lessons. First, the account here offers a cautionary tale about reliance on “conventional wisdom.” Second, the analysis suggests that theorists should set aside debates over “literalism” in statutory interpretation. The question is not—and has never been—whether interpreters should look to context but rather which context they should consider.

Nw. U. L. Rᴇᴠ.