Equal Protection Clause Archives – Southern California Law Review

Pants on Fire: How the Brinkmann Majority Forgot About the Takings Clause in a Takings Clause Case

March 2026March 2026Anna Fein*

INTRODUCTION

In 2016, Ben and Hank Brinkmann (the “Brinkmanns”) embarked on a journey of building a hardware store on an empty, commercially zoned lot in the Town of Southold, New York (“the Town”).¹

In 2017 and early 2018, the Brinkmanns met with the Town Planning Department to “create and revise site plan applications” for the hardware store.² At the beginning of 2018, the Brinkmanns filed their first permit application.³ This application contained a site plan, which allegedly underwent two rounds of revisions while implementing the Planning Department’s requests.⁴ The Town denied the permit three months later. The Brinkmanns claimed that the Town informed them that “no site plan had been approved by the Planning Department.”⁵ In May 2018, the Brinkmanns again applied for site plan approval.⁶ In July 2018, the Town allegedly demanded that the Brinkmanns pay for a $30,000 Market and Municipal Impact Study.⁷ According to the Town, such a market study was required because the Brinkmanns wanted to “construct a big box hardware store in a small, semi-rural hamlet on eastern Long Island,”⁸ which was not in the best interest of the Town.

There are two sides to every story, and this is where the stories begin to significantly diverge. For their part, the Brinkmanns allege that the Town never conducted the $30,000 study they paid for, despite being legally required to do so.⁹ Yet the Town asserted that it had “complied procedurally and substantively with New York eminent domain law.”¹⁰

The Brinkmanns argue that the Town chose to acquire their parcel despite the availability of an adjacent undeveloped plot of land, which the Town “never [even] considered acquiring.”¹¹ The Brinkmanns further allege that in October 2018, the Town took even more “drastic measures,” “pressur[ing]” the bank to breach its own “purchase contract [with the Brinkmanns] for the vacant lot” and demanding that the bank enter into a purchase contract with the Town of Southold instead.¹² The Brinkmanns were “[u]ndeterred” by the Town’s intimidation tactics.¹³

In February 2019, the Town enacted a six-month moratorium on new building permits.¹⁴ The Brinkmanns argue that the moratorium was limited to a “one-mile stretch of road,” essentially targeting their lot.¹⁵ The Town claims, however, the six-month moratorium was on “any new building permits along one mile of Route 25, which included the Brinkmanns’ proposed site, among several other businesses.”¹⁶

The Town then twice extended the moratorium—first in August 2019 and then again in July 2020.¹⁷ The Brinkmanns allege that the Town extended the moratorium contrary to Suffolk County’s disapproval and despite lacking any evidentiary support for these moratoriums.¹⁸ The Town also generously gave out moratorium waivers, but not to the Brinkmanns.¹⁹ The Town emphasizes the Brinkmanns never applied for such a waiver in the first place—an application which the Brinkmanns “believed [would be] futile, as the moratorium was clearly target[ing them].”²⁰ In May 2019, the

Brinkmanns sued the Town to end the moratorium.²¹ In June 2020, “[t]he state trial court denied the Town’s motion to dismiss.”²²

In August 2020, the Planning Board “held a public hearing on the proposed project to build a public park” on the Brinkmanns’ lot.²³ In September 2020, the Town issued a “Findings and Determination” in which it concluded that the “acquisition [of the Brinkmanns’ lot would] benefit the public” because a public park would allow “the residents of Mattituck and Southold . . . the opportunity to create . . . [a] community gathering place.”²⁴ In May 2021, the Town “initiat[ed] condemnation proceedings on the [Brinkmanns’ lot].”²⁵ The Brinkmanns note that the Town’s September 2020 announcement of the acquisition of their lot via eminent domain conveniently occurred shortly after the state trial court allowed the Brinkmanns to proceed with their moratorium claim against the Town.²⁶ The Brinkmanns also emphasize that the park the Town decided to build was a passive use park that lacks “any improvements” or facilities.²⁷

Moreover, a September 2020 article published in The Suffolk Times by Southold Town Board Member Sarah Nappa drew attention to the Brinkmanns. In the article, Nappa hints at there being good probability that the Town exercised its eminent domain power because it disliked the Brinkmann family.²⁸ Nappa opined that the Brinkmanns’ fate would have likely been different had they been members of the Town of Southold’s “old boys club,” as opposed to being community “outsider[s].”²⁹

In a 2-1 decision in 2024, the Second Circuit’s Brinkmann majority affirmed the lower court’s ruling in favor of the Town.³⁰ Even though the panel agreed that the Brinkmanns’ complaint alleged “facts sufficient to support a finding that the [Town’s] decision to create the park was a pretext for defeating the Brinkmanns’ commercial use”³¹ and conceded that the Town exercised its eminent domain power only after the failure of its various “regulatory hurdles,”³² the Brinkmanns still lost. So, what went wrong for the Brinkmanns?

Apart from examining the Brinkmann majority’s reasoning to answer this question, this Note proposes a heightened scrutiny analysis for bad-faith takings via the tripartite burden-shifting framework. Although this evidentiary framework was put forth in McDonnell Douglas Corporation v. Green,³³ an employment discrimination case, the application of the framework has not stopped there. The framework has also been applied by Daniel B. Kelly in the context of takings driven by “impermissible favoritism”: when a “favored private entit[y]” or person has a “benefit[]” conferred on them, “with only incidental . . . public benefits.”³⁴

What happened to the Brinkmanns, however, is arguably the exact opposite of favoritism. Thus, this Note extrapolates the tripartite burden-shifting framework to takings arising out of disfavor, from reasons ranging from discrimination and animosity to outright bias. Such an inquiry has largely gone unexplored due to the common assumptions that (1) strict deference to the legislature should somehow justify or excuse bad-faith takings or (2) the Equal Protection Clause is sufficient to address discriminatory takings. This Note will address both of these arguments and also illustrate what is at stake if bad-faith takings continue to slip consequence-free through the cracks of American jurisprudence.

Section I briefly provides an overview of takings in general, largely focusing on the history of the rapid expansion of “public use.” Section II explores Brinkmann’s reasoning, highlighting its many legal conclusions, each of which exhibits flaws. Section III focuses on the Ninth and Seventh Circuits to discuss the federal circuit split. Finally, Section IV examines the tension between rational basis review and some unspecified form of heightened scrutiny proposed by Justice Kennedy’s concurrence in Kelo v. City of New London.³⁵ Section IV then uses Justice Kennedy’s heightened scrutiny suggestion as an entry point to examining the tripartite burden-shifting framework and its application to takings motivated by discrimination and bias. After extrapolating Kelly’s scholarship to bad-faith takings, Section IV examines the perils of adopting rational basis review instead. Section IV further underscores why the Equal Protection Clause and the doctrine of unconstitutional animus, while attractive solutions at first glance, are actually inadequate to the task in this context. Section IV concludes with an assessment of Brinkmann’s societal impact.

I. HISTORY AND BACKGROUND: THE RAPID EXPANSION OF “PUBLIC USE”

The Takings Clause of the Fifth Amendment provides: “[N]or shall private property be taken for public use, without just compensation.” This clause applies to the states through the Fourteenth Amendment.³⁶ What the Takings Clause prohibits is governmental takings of private property without just compensation, not takings altogether.

So, what does “public use” encompass? Perhaps the more salient question, though, is what does “public use” exclude? Traditionally, the Takings Clause was used by governmental entities to “condemn and acquire property to be used by the public” in innocent, even useful, ways: for example, “building public roads or providing for utilities infrastructure” like electric transmission lines.³⁷ Most people acknowledged, understood, and even “appreciate[d]” this eminent domain power to condemn private property for conversion into public use, provided there was just compensation.³⁸ Without this inherent power to appropriate land, the public would not have highways, courthouses, post offices, and railroads (the so-called clear instances of public use).³⁹ And without these amenities and structures, society would probably cease to function. The public was relatively content with this interpretation of public use because everyone got their share: all members of the public had access to these public uses and “benefit from the system” that provided the “basics of modern life.”⁴⁰ But then something happened—an expansion of the concept of public use beyond highway-building.

Public use became an “amorphous concept, resistant to precise definition”⁴¹ and—conveniently for the government—began to be defined broadly.⁴² From its humble beginnings as a non-contentious issue, eminent domain erupted into a “hotly contested” area of law.⁴³ In 1908, the Supreme Court held in Hairston v. Danville & Western Railway Company “that it is beyond the legislative power to take . . . the property of one and give it to another for what the court deems private uses,” despite “full compensation.”⁴⁴ This was likely comforting to hear; members of the public probably understood this statement as the Court saying that taking private party A’s property to give it to private party B was off-limits. But then, private corporations began to seek the “power to condemn property for their own objectives.”⁴⁵ There had been a shift in takings jurisprudence.

In its 1925 Old Dominion Land Corporation v. United States decision, the Supreme Court emphasized that the legislative branch, as it pertains to public use, is “entitled to deference until it is shown to involve an impossibility.”⁴⁶ But the legislative branch’s limitless power to deem any non-impossible undertaking a public use was hardly the only facet of takings doctrine abused by both private and governmental entities.

In 1954, the Supreme Court decided Berman v. Parker.⁴⁷ In Berman, the Court allowed an administrative agency to take a non-blighted department store and redevelop it “so as to . . . prevent slum . . . housing conditions.”⁴⁸ The department store was also to be transferred to a “private development corporation for the purpose of curing blight.”⁴⁹ Petitioners argued that this would make it a “taking from one business [person] for the benefit of another.”⁵⁰ The Court ruled, however, that the so-called “means” of “executing [a] project are for Congress and Congress alone to determine”⁵¹ and that the “public end may be as well or better served through an agency of private enterprise . . . or so the Congress might conclude.”⁵²

So long as Congress believes that an act of conferring a private benefit from party A to party B “may” or “might” serve the public, such a taking is Berman-blessed. Thus, Berman found constitutional the District of Columbia Redevelopment Act of 1945—which, among other things, authorized sales of “condemned [private] lands to [other] private interests.”⁵³ Under Berman, public use essentially became synonymous with everything under the sun, just as long as the taking was justified by some nominal argument citing “public health, safety, morals, [or] welfare.”⁵⁴ But this Berman reiteration was hardly surprising in the context of Old Dominion. If anything, Berman was a case that truly legitimized hostility to private property owners, reinforcing public use as a broad concept that works to benefit governmental interests. Berman further underscored the irony that “public use” also serves to benefit private corporations that profit from such projects. This Note will return to Berman in Section IV.D to examine its catastrophic fallout.

In 1984, the Supreme Court decided Hawaii Housing Authority v. Midkiff, examining the validity of the Land Reform Act of 1967.⁵⁵ The Act authorized a transfer of titles from lessors to lessees, so as “to reduce the concentration of land ownership.”⁵⁶ This blunt conveyance of private property from party A to party B (a private beneficiary) neither raised concern nor constituted a taking “as having only a private purpose.”⁵⁷ So, although the Midkiff Court acknowledged that there was obviously some type of private purpose here (i.e., person B receiving person A’s private property), the Court emphasized that “[i]t is not essential that the entire community, nor even any considerable portion [of the community], . . . directly enjoy or participate in any improvement in order . . . to constitute a public use.”⁵⁸

Thus, under Midkiff the public use definition was even further expanded; a taking no longer even had to benefit a considerable portion of the community. This begs the question: how many members of the community would need to benefit for a taking to constitute a valid public use? Perhaps zero—if one subscribes totally to Berman-esque legislative deference where Congress might “conclude” that the public may be served in some way via a taking.

A basic overview of takings law cannot be complete without consideration of Kelo v. City of New London, a highly divisive 5-4 decision of the Supreme Court from 2005.⁵⁹ Kelo plays a major role in the Brinkmann decision, the unfortunate North Star of this Note. The Kelo majority authorized the taking of Susette Kelo’s “non-blighted”⁶⁰ little pink house in the name of a “speculative” economic development rationale.⁶¹ The little pink house and several others like it were to be torn down so Pfizer Inc., a private pharmaceutical company, could erect a $300 million research facility in their place.⁶² The New London Development Corporation (“NLDC”) wanted to erect this $300 million Pfizer facility so as to attract new commerce, create jobs, generate tax revenue, and help to “build momentum for the revitalization of downtown New London.”⁶³ This “momentum” also apparently included making New London more “attractive.”⁶⁴

Kelo’s most egregious overstep is that none of these public uses were actually reasonably expected to occur or even had to occur. They were merely alleged, and indeed, were “speculative” because neither Pfizer nor NLDC would be required to use the condemned property “in a way that [actually] bolsters the local economy.”⁶⁵ Viewed differently, not only is the conveyance of private benefit to a private party permissible under Kelo if there is embedded therein some whiff of public use, but this whiff of public use no longer even need be actualized. Instead, it can simply be hypothetical. And this line of criticism tracks with the Kelo majority, who emphasized the sufficiency of NLDC merely “believ[ing]” the development plan would benefit the community.⁶⁶ The Kelo majority further disagreed with Susette Kelo that there needs to be “reasonable certainty” that the “expected public benefit[]” will actually “accrue.”⁶⁷

Where did this absolute faith in what NLDC was alleging come from? One can cite federalism, as did the majority in virtually every federal decision upholding a taking. Sure, the Kelo majority said that the “amount and character of land to be taken” and the “need” for specific land “rests in the discretion of the legislative branch.”⁶⁸ Sure, to negate these consequences of lack of oversight, checks and balances, and even de minimis accountability, states can impose public use requirements that are “stricter than the federal baseline.”⁶⁹ But if states are the only ones who care about not “wash[ing] out” all distinctions between public and private uses, this will lead to a drastic discrepancy.⁷⁰ Justice Sandra Day O’Connor warns that, thanks to the Kelo majority, some states now might as well replace all “Motel 6[s] with . . . Ritz-Carlton[s],” or other little pink houses with shopping malls, or farms with factories, simply because they might revitalize or possibly beautify a city.⁷¹ Justice O’Connor further posits that if the legislative branch is the “sole arbiter[] of the public-private [use] distinction, the Public Use Clause [will] amount to little more than hortatory fluff.”⁷² Judicial checks on interpretation of public use are necessary if the Public Use Clause, as a “constraint on government power[,] is to retain any meaning.”⁷³

Moreover, as Justice O’Connor further points out, the true impact of such radical deference to the legislative branch will, of course, be disparate.⁷⁴ What happens when the government can take “private property currently put to ordinary private use,” such as homes and small family businesses, and “give it over” for new private use—a use that can, but does not have to, “generate some secondary benefit for the public”?⁷⁵ The “beneficiaries” will likely be large entities, development firms, and people with “disproportionate influence and power in the political process” at the expense of those with less resources.⁷⁶

After Kelo was decided, newly discovered evidence revealed that NLDC “blocked” a competitive bidding process for the site to guarantee that Pfizer would get it.⁷⁷ NLDC used eminent domain to “appease” Pfizer.⁷⁸ So much so that the President of NLDC wrote a letter to Pfizer before Pfizer announced its plans, promising to “meet Pfizer’s requirements.”⁷⁹ To this end, NLDC promised to “buy up all the[] properties [in Susette Kelo’s neighborhood], clearing the way for redevelopment in line with Pfizer’s wishes.”⁸⁰ And NLDC ultimately did everything to “entice[] Pfizer to join the project by letting Pfizer dictate the contours of the [redevelopment], including the decision to condemn the properties in [Susette] Kelo’s neighborhood.”⁸¹ None of this was known at trial, and one could certainly speculate that the Kelo decision may have been different had the Kelo Court

known about the driving force behind these vague promises of economic revitalization—or perhaps not.

Although these are seminal cases in takings jurisprudence, they focus solely on the act of conferring a private benefit on another private party through the transference of property rights. They do not discuss takings which are inherently driven by discrimination, racism, homophobia, or animosity toward condemnees. That is, they do not tackle the issue of what happens when a governmental entity simply decides to condemn party A’s property out of hostility toward party A’s family, for instance. Although Brinkmann ostensibly seeks to address this question, the Brinkmann majority relied heavily on Kelo to show that Kelo imposes no requirement that the “government’s stated objective” be “genuine” and free from “pretext for some other, illegitimate purpose.”⁸² Hence the importance of discussing Kelo at length before this Note could delve into an explanation of how the Brinkmann majority likely misinterpreted Kelo. This discussion will take place in Section II(C). Another crucial takeaway from Kelo resides in Justice Kennedy’s concurrence, specifically Justice Kennedy’s reference to the possibility of some unknown form of demanding scrutiny and when it should be invoked.⁸³

II. THE BRINKMANN CASE

The purpose of this Section is to examine some of the Brinkmann majority’s arguments in support of their decision to dismiss the Brinkmanns’ bad-faith takings claim. This Section demonstrates why the Brinkmann majority’s reasoning is, in many ways, flawed and therefore does not support its holding.

A. The Impossible Inquiry That Is (Actually) Possible

According to the Brinkmann majority, looking beyond the Town’s stated purpose behind a taking is an exercise “fraught with conceptual and practical difficulties.”⁸⁴ Such inquiry, holds the Brinkmann majority, is too demanding and would require courts to look into the “subjective motivation of every official who supported the [taking]”; this task is too demanding because motives are “rarely, if ever, pure.”⁸⁵ True, examining the intentions of every single official involved in the condemnation process would indeed be an exercise that is, at best, impracticable. Nonetheless, the logical assumption underpinning the Brinkmann rationale—namely, that scrutiny of every official’s underlying motive is necessary to determine the presence of bad faith—is, to put it mildly, a bit flawed.

But the Brinkmann majority took it a step further: government officials can be outright “hostile,” and the Brinkmann majority would still deem the taking valid as long as there is merely an asserted valid public use.⁸⁶ As openly admitted by the Town, even if the Town condemns homes of “disfavored minorities” purely “out of animus toward those minorities and a desire to drive them out of [Town],” this, too, would constitute a valid taking if the park excuse is presented to disguise that animosity.⁸⁷

By prioritizing judicial efficiency and simple-to-apply bright-line rules over ones that actually protect rights, the legal landscape in the wake of the Brinkmann decision is not merely grimly unfair; it verges on dystopian because bad faith slips through the cracks in the name of judicial efficiency.

Simple-to-apply, bright-line rules are not without their charms, however: they are easy to comprehend, produce consistent results, and are hard to misapply. But what happens when said consistency renders unfair outcomes? What happens when a condemnee has fistfuls of objective evidence that they have been wronged, but the court refuses to even consider any of it because doing so would apparently be too demanding an undertaking?

These simple-to-apply rules produce blatant injustices: as precedent, Brinkmann authorizes courts to deem a taking valid as long as there is any asserted public use, even if the condemnees could prove that the condemnation process was initiated and executed in bad faith.

Critically, none of these examples of conduct tackle the incentives or motives of any official. Instead, they come down to objective evidence. One need not delve into why the town officials enacted a moratorium over the protest of the county planning commission. One need not know why the town officials refused to send the county any evidentiary support concerning the supposed need for a moratorium. Similarly, one need not know the reason why the town never conducted an expensive market study that the condemnees had paid for, thereby expressly violating its own city code.⁸⁸ None of this evidence demands discernment of inscrutable motivations. This impossible inquiry is possible because it need not address the motivations of every official involved.

What is truly egregious in Brinkmann is the objective evidence provided. Hence why the Brinkmann majority had no difficulty in finding that the Town’s taking was pretextual.⁸⁹ The Brinkmann majority reached their conclusion via factual inquiry and managed to parse the evidentiary record. Other courts would similarly have no problem in conducting such inquiries on a routine basis.

B. The Brinkmann Majority’s Disregard of Their Own Precedent, Goldstein v. Pataki

If the plaintiff fails to provide sufficient evidence of a taking that is a pretext for private purpose or instead animus, dislike, or spite, courts can absolutely reject their claims and have done so in the past. But this ability to screen out plaintiffs who lack sufficient evidence is actually a good thing because it greatly streamlines the judicial process. No case better exemplifies this than Goldstein v. Pataki, a 2008 Second Circuit case that the Brinkmann majority, ironically, cites extensively.⁹⁰ Why ironically? Because Goldstein in no way supports the Brinkmann majority’s position.

Significance of Objective Evidence

The Goldstein plaintiffs claimed that “the [alleged] public uses were pretexts for a private taking” because Mr. Ratner, the owner of the New Jersey Nets and the Project’s primary developer, was the project’s “sole beneficiary,” while all the invoked public uses were mere “pretexts advanced by corrupt . . . state officials.”⁹¹ The plaintiffs did not prevail for various reasons—each of which would likely be sufficiently dispositive when taken individually.

The plaintiffs failed to provide objective evidence of the corruption they alleged, or of any bad faith for that matter. Thus, beyond “far-reaching allegation[s]” the plaintiffs had nothing to offer the court.⁹² The biggest error committed by the Goldstein plaintiffs was that they failed to allege “any specific examples of illegality . . . by which the Project was approved” or any “specific illustration of improper dealings between Mr. Ratner and . . . government officials.”⁹³ Noteworthy here, however, is the fact that the Goldstein court was open to hearing such evidence in the first place. And, unlike the Brinkmann majority, the Goldstein court would not have considered the process of evaluating said evidence to be “fraught with conceptual and practical difficulties.”⁹⁴ Instead, the Goldstein court actively sought such evidence. The Goldstein court wanted the plaintiffs to provide them with evidence of bad faith, so they could actually assess and analyze the bad faith that the plaintiffs alleged. Yet the plaintiffs provided the Goldstein court with essentially nothing beyond “mere suspicion[s].”⁹⁵ It is unsurprising, then, that the Goldstein court dismissed the plaintiffs’ claim.

Further, as emphasized by Judge Menashi, the dissenting judge in Brinkmann, the Goldstein court dismissed the plaintiffs’ claim “not because pretextual takings are permissible” but only because the allegations of pretext lacked specificity.⁹⁶ The Goldstein court’s concern was that a “reasonable juror” would simply not be able to conclude that the asserted laundry list of traditional public uses was mere pretext.⁹⁷ Now, contrast this with Brinkmann: The Brinkmann majority expressly admitted that the Brinkmanns’ “complaint . . . allege[d] facts sufficient to support a finding that the decision to create the park was a pretext.” Thus, evidence of pretext was definitely not lacking in Brinkmann.⁹⁸

Possibility of Closer Objective Scrutiny

The Goldstein court also stated that they wished to “preserv[e] the possibility that a fact pattern may one day arise in which the circumstances” would so align that “a closer objective scrutiny” would be “required” in the context of pretextual takings.⁹⁹ To justify this closer objective scrutiny, the so-called “circumstances of the [condemnation’s] approval process” would have to “greatly undermine the basic legitimacy of the outcome reached.”¹⁰⁰ Naturally, the Goldstein plaintiffs’ utter failure to provide facts supporting their allegations of bad faith, pretext, and illegality did not trigger that closer

objective scrutiny to which the Goldstein court alluded as a possibility in some pretextual takings cases.

The Goldstein fact pattern, however, is not present in all cases, and there are cases in which the plaintiffs can and do provide the court with ample evidence concerning pretext, thus triggering a closer objective scrutiny. Brinkmann presented precisely such a fact pattern. In Brinkmann, the “circumstances” surrounding the process of a passive park approval ranged from the Town’s alleged lawbreaking arising out of the Town’s refusal to conduct the $30,000 market study for which the Brinkmanns had paid to the allegedly baseless moratoriums. Such accusations must have, at a minimum, been supported by objective evidence that the Brinkmanns provided, as the Brinkmann majority even noted that the Brinkmanns’ complaint alleged “facts sufficient to support a finding that the [Town’s] decision to create the park was a pretext for defeating the Brinkmanns’ commercial use.”¹⁰¹

But returning to the Goldstein rule, here the “approval” consisted of the Town authorizing the condemnation of the Brinkmanns’ parcel. And as to the “outcome” reached: one could plausibly argue that a regulation-abiding family business was shut down, and the parcel was condemned simply so others could enjoy a park without any amenities. The rule that Goldstein sets out, calling for a closer objective scrutiny, can therefore be applied to the Brinkmann facts. On its face, Brinkmann checks off all three elements of the Goldstein rule: circumstances, approval, and outcome. Of course, counterarguments could be made here, such as (1) building a hardware store in this specific location might further “increas[e] traffic in an area that is already dangerous” and (2) residents of the Town of Southold have numerous “concerns” about this hardware store and do not want the Brinkmanns to build it.¹⁰² But all of these accusations and counterarguments would likely require closer objective scrutiny—as opposed to automatically blessing a bad-faith taking because the condemner asserted some public use.

Pretextual Taking: A Claim of Dubious Jurisprudential Pedigree?

One last aspect of Goldstein worth addressing is how the Brinkmann majority emphasized that, apparently, pursuant to Goldstein, “a pretext-based challenge to a taking has a ‘dubious jurisprudential pedigree.’ ”¹⁰³ This is largely taken out of context and is an inappropriate generalization. The Goldstein court said that the “particular kind of ‘pretext’ claim the plaintiffs [raised] in this case . . . bears an especially dubious jurisprudential pedigree.”¹⁰⁴ What has a dubious jurisprudential pedigree is the evidentiary underpinning of the Goldstein plaintiffs’ pretext claim, not all other pretext-based claims outside of the Goldstein realm; Mr. Ratner offered an extensive list of “well-established” public uses to counter the Goldstein plaintiffs’ claim.¹⁰⁵ Contrast Goldstein’s “creation of affordable housing units,” “mass-transit improvements,” and “redress of blight” with Brinkmann’s 1.7-acre empty park.¹⁰⁶ The difference is as starkly evident as it is profound, indicating that the Brinkmanns’ assertion of a pretextual taking was not of dubious jurisprudential pedigree.

C. The Possibly Fatal Mistake of Kelo Misinterpretation

Before this Note addresses the Brinkmann majority’s possible misinterpretation of Kelo—or at least, its failure to consider alternative interpretations and dispose of them appropriately—an important question should be addressed: Why does it matter how the Brinkmann majority interpreted Kelo? The answer is simple: the Kelo misinterpretation alone likely cost the Brinkmanns their property.

The Brinkmann majority helped themselves to generous portions of Kelo—or, more specifically, the following Kelo passage—which is the key in this analysis: “[T]he [C]ity would no doubt be forbidden from taking petitioners’ land for the purpose of conferring a private benefit on a particular private party . . . Nor would the [City] be allowed to take property under the mere pretext of a public purpose, when its actual purpose was to bestow a private benefit.”¹⁰⁷

An Unwarranted Inference Drawn by the Kelo Majority

The Brinkmann majority confidently asserted that the “mere pretext of a public purpose” language is not an “overarching prohibition against any and all purposes alleged to be ‘illegitimate.’ ”¹⁰⁸ Per the Brinkmann majority, Kelo imposed no requirement that the “government’s stated objective . . . be genuine, and not a pretext for some other, illegitimate purpose,” unless that purpose concerns bestowal of private benefit.¹⁰⁹ The Brinkmann majority concluded that, under Kelo, “the only impermissible pretext is bestowing a private benefit.”¹¹⁰ So only when there is an alleged private purpose (e.g., private party A conferring a private benefit on B, another private party) does the Brinkmann majority actually care to delve into whether the government’s stated objective is genuine. Other kinds of pretext such as prevention of a legal land use (think a family-owned hardware store), spite, and discrimination are permissible under Brinkmann—as long as there is an asserted valid public use.¹¹¹

And in Brinkmann, bestowal of private benefit was not alleged, so the Brinkmanns were simply out of luck.¹¹² In Brinkmann, the issue was not that the government bestowed a private benefit upon some private party at the Brinkmanns’ expense. Nor was there some other permutation of the “private benefit” concern. Instead, at issue was a municipality taking private land for a pretextual public use (i.e., a passive use park)—not for purposes of giving the land to some other private party.

But here an interesting wrinkle emerges in the Brinkmann majority’s logic: when did Kelo say that the sole impermissible takings are those in which the government’s actual motive is to bestow a private benefit upon some private party? Similarly, when did Kelo say that takings driven by spite, discrimination, or animus are allowed and require no inquiry into both purpose and mechanics? These are trick questions because Kelo never said either, and yet the Brinkmann majority inferred that it did.

It would seem that the likely reason why Kelo’s “mere pretext of a public purpose” language is immediately followed by a bestowal of private benefit qualifier is because Kelo, as a case, focused exclusively on private use. At issue in Kelo was whether the city could seize private property from one private party in order to confer a benefit on another private party, all for the ostensible purpose of economic development. Accordingly, by what logic can the Brinkmann majority confidently decree which other pretextual takings are permissible or impermissible when the only issue before the Kelo court involved private use and nothing else? Or are we supposed to assume that because private benefit was the only kind of pretext mentioned by Kelo, this now suddenly means that all other kinds of pretext are excluded from this status of impermissibility, therefore making them permissible under all circumstances—even the most egregious?

Two Ways of Interpretation: Examining New England Estates LLC v. Town of Branford

The Brinkmann majority interpreted “mere pretext of a public purpose” as stating that the only impermissible takings are those in which there is a conveyance of private benefit.¹¹³ The same language, however, can also be interpreted thusly: takings that convey a private benefit, along with other forms of pretextual takings (e.g., those arising out of spite, discrimination, or unfair prohibition of running a regulation-abiding family business) are all impermissible. This Kelo language does not necessarily close all doors to other claims stemming from other forms of pretext, as claimed by the Brinkmann majority. One can just as well argue that Kelo merely provided a single, non-exclusive example of pretext (i.e., conveyance of private benefit) and the reason why this example pertained to conveyance of private benefit and not something else is because Kelo is a case that narrowly addresses the private benefit issue. But this act of providing a single example of pretext does not deny protection to all other kinds of pretextual takings. The “mere pretext of a public purpose” language does not delineate what is excluded from the so-called “pretext.” Nor does Kelo place any restrictions or limits upon potential plaintiffs raising other types of pretextual takings claims, such as those involving discrimination or spite.

This idea of varying interpretation of the Kelo language was also examined in New England Estates, LLC v. Town of Branford, a 2010 Connecticut Supreme Court decision which is in direct opposition to Brinkmann.¹¹⁴ Notably, the Second Circuit (where Brinkmann was decided) includes Connecticut in its footprint.¹¹⁵ In New England Estates, New England Estates wanted to build an affordable housing development near the landfill.¹¹⁶ The Town committee then abruptly decided that the town had an urgent need for playing fields precisely where the affordable housing development was to be built.¹¹⁷

Apart from the dire need to build a playing field, the town in New England Estates also decided to bolster its tenuous position via an alternative justification for the taking by citing environmental concerns surrounding the proposed development’s proximity to the landfill.¹¹⁸ And this justification would have probably worked had there been no evidence to the contrary: (1) an internal memorandum outlining which strategies had already been implemented by the town for the sole purpose of “protecting the town against affordable housing appeals” and (2) “internal communications” among town officials revealing just how much they did not want an affordable housing development.¹¹⁹

To justify its environmental concerns, the town relied on a one-page sketch of the playing fields and a five-page letter, which outlined “generic” concerns regarding building residential developments near landfills.¹²⁰ Beyond alluding to “possibilities” of such contamination, the letter said nothing substantive in regard to the specific landfill at issue.¹²¹ The incriminating internal communications, coupled with the town officials’ sudden environmental concerns at a time very convenient for them, followed swiftly by the exercise of eminent domain power to stop the affordable housing project, made it rather easy for the New England Estates court to properly halt the town’s bad faith actions.¹²²

The town argued that it did not violate the Takings Clause by being “dishonest” about its reasons for taking the land because the Takings Clause only prohibits takings for private use, not other kinds of pretextual takings.¹²³ If this argument sounds familiar, it is because this is precisely what the Brinkmann majority emphasized: the “[Brinkmanns’] complaint does not allege that the Town meant to confer [a] private benefit” and because an “unimproved” public park still constitutes public use, this makes the condemnation valid.¹²⁴ Unlike the Brinkmann majority, however, which praised this reasoning, the New England Estates court rejected the town’s assertion that takings become violations solely when the government seizes private property for a private use.¹²⁵ This assertion made by the town in New England Estates is identical to that of the Brinkmann majority¹²⁶ and also has its roots in a possible misinterpretation of Kelo, as examined in this Section.

The New England Estates court emphasized that the town’s reliance on Kelo “for the proposition that only a taking for the purpose of conferring a benefit on a private party constitutes a violation of the [Takings Clause]” is incorrect.¹²⁷ Such a reading of Kelo’s “mere pretext of a public purpose” language interprets the Takings Clause in an unjustifiably “overbroad[]” manner.¹²⁸ That is, it takes Kelo’s prohibition against bestowals of private benefits and extends it to say that the sole impermissible takings are those in which there is a bestowal of private benefit. Further, because the “issue of whether a bad-faith taking would violate the [Takings Clause]” was never before the Kelo court to begin with,¹²⁹ the inference that bad-faith takings should go unchecked cannot be made. Thus, the Connecticut Supreme Court would disagree with the Brinkmann majority concerning the interpretation of the pretext language in Kelo.

It is the current reality of the takings landscape that whether a Connecticut resident loses or prevails on their pretextual taking claim now largely depends on choice of venue.¹³⁰ In Connecticut state court, someone with a Brinkmann-esque fact pattern would likely prevail on the merits.¹³¹ Yet that same hypothetical person marching into federal court would summarily lose for lack of an alleged bestowal of private benefit.¹³²

III. THE NINTH & SEVENTH CIRCUITS

This Section examines the reasoning of the Ninth and Seventh Circuits in cases that resemble Brinkmann and tackle bad-faith takings analysis. Both circuits, to varying degrees, stand in contrast to the Brinkmann majority which conducted no such analysis.

A. Analysis of the Ninth Circuit

In the 1966 Ninth Circuit decision, Southern Pacific Land Company v. United States, the Ninth Circuit stated that when administrative agencies engage in takings for an “authorized public purpose,” such takings are “not subject to judicial review,” with one crucial exception.¹³³ Takings for an authorized public purpose can be subject to judicial review if the administrative agency’s decision to condemn a property is “alleged to be arbitrary, capricious, or in bad faith.”¹³⁴ While easy enough to allege, this standard is deferential to administrative agencies, resulting in a low likelihood of success for plaintiffs. In fact, the Ninth Circuit even stressed how unlikely it is for plaintiffs in such cases to succeed: “in each instance in which a lower court set aside a federal agency’s determination that it was necessary to take [a] particular property . . . the lower court’s ruling was reversed on appeal.”¹³⁵ The principle nevertheless stands: there are instances when the Ninth Circuit will examine alleged bad faith in takings claims, even though these allegedly bad-faith takings all bear expressly stated ostensible public uses.

A natural inquiry in this line of analysis is to examine what is required to clear the Ninth Circuit’s high bar for challenging administrative agencies’ “arbitrary” takings. The Ninth Circuit instead provides multiple examples of how not to satisfy it, which all come down to the quality of bad faith evidence. If the evidence of bad faith is insubstantial or nonexistent—especially coupled with very big, almost scandalous, but largely unsupported assertions—the Ninth Circuit will not invalidate the administrative agency’s taking.

In Southern Pacific, the Southern Pacific Land Company (“SPLC”) owned 4,600 acres of land, including the mineral rights.¹³⁶ The U.S. Government wanted to condemn the land and the mineral rights for purposes of constructing a naval air station.¹³⁷ SPLC thought it advantageous to essentially imply that the U.S. Government decided to profit off SPLC’s land and engage in an “outside land speculation.”¹³⁸ When deposed, the Assistant Secretary of the Navy testified to the exact opposite of this assertion, stating that mineral extraction was actually “inconsistent with the establishment of the naval air station, and was not [even] contemplated when the declaration of taking was filed.”¹³⁹ In fact, the primary reason for condemnation was so that the land and the associated mineral rights would be utilized to produce oil only “in the case of emergency.”¹⁴⁰ And just like that, with absolutely no evidence to refute any of the U.S. Government’s aforementioned points, the plaintiffs did not prevail on their bad-faith taking claim.¹⁴¹

A subsequent 1968 Ninth Circuit decision, Scott Lumber Company v. United States, is largely identical to Southern Pacific’s reasoning and, unfortunately, its outcome too.¹⁴² Here, the United States (on behalf of the United States Forest Service) sought to condemn appellant’s estate in timber land “for the construction, maintenance and permanent use of highways . . . and for the use, conservation and protection . . . of [the] forests [on appellant’s land].”¹⁴³ Similar to SPLC in Southern Pacific, the Scott Lumber appellant claimed that the “taking was not for a public purpose” but instead for the “purpose of benefitting certain competitors of appellant pursuant to an illegal agreement.”¹⁴⁴ As in Southern Pacific, the assertion was as unsupported as it was bold.¹⁴⁵ Moreover, the deposition of the Acting Secretary of the Department of Agriculture also revealed nothing suspicious.¹⁴⁶ Accordingly, the Scott Lumber court ruled that it was “completely satisfied” that the government’s taking was for public use—given that the “facts alleged by [the appellant], [even] taken in the light most favorable to [the appellant]” still did not “show that the action of the officials ha[d] such an arbitrary, capricious or bad faith quality as to justify [judicial] interference.”¹⁴⁷ Crucially, however, the Scott Lumber court did contemplate judicial interference and was even willing to possibly invalidate a bad-faith taking had the appellant actually produced sufficient evidence of bad faith, beyond claims that were as baseless as they were audacious.¹⁴⁸

The Scott Lumber court even agreed with the lower court’s declaration that “[t]his Court need not, and will not, stand idly by and allow administrative officials to take private property arbitrarily, capriciously, [or] in bad faith,” something that cannot be said about the Brinkmann majority.¹⁴⁹ If anything, this “idle” manner is emblematic of Brinkmann’s reasoning: even when there is blatant evidence of bad faith coupled with some suspect public use, the Brinkmann majority would decline to look into any “alleged pretexts and motives.”¹⁵⁰ The Scott Lumber court was not only eager to conduct itself in a non-idle manner but also examined the facts in the light most favorable to the appellant. Yet, even with the Scott Lumber court largely cheering the appellant on and giving the appellant all the necessary tools to prevail, the appellant simply failed to provide evidence of bad faith.

Would a similar evidentiary framework, as employed by the Southern Pacific and Scott Lumber courts (specifically in the context of arbitrary takings by administrative agencies) make sense in the Takings Clause context? This is a ready-to-go framework that can be easily applied beyond cases where administrative agencies (such as Scott Lumber’s United States Forest Service) are accused of engaging in bad-faith takings.

Although it offers a potential solution, this framework has its pitfalls. One, it is similar to rational basis review, so much so that it even uses rational basis review’s “arbitrary” language. Such language is called for in rational basis review only because higher levels of scrutiny require something more than the regulatory action not being arbitrary. At the end of the day, it is a pretty low bar, offering little protection for condemnees’ interests; any legitimate interest (e.g., a passive use park) would suffice. Two, it is hard to define just what constitutes “good” evidence in a manner sufficient to demonstrate bad faith. And three, even if condemnees provide satisfactory evidence, the government can simply argue the following:

That only one or two members of the agency (or a municipality like in Brinkmann) had bad-faith intent in condemning the land (while the rest did not);
That it is not the province of the judicial system to disrupt a democratic process; and
That it is not bad faith but mere incidental disparate impact that was not actually intended.

B. The Seventh Circuit & Question of Legislative Deference

The Seventh Circuit takes a similar approach to the Ninth Circuit: although some deference may be given to administrative agencies, evidence of arbitrariness and bad faith matters when a court evaluates whether an administrative agency’s taking was indeed for a public use. That is, the Seventh Circuit holds that there is no valid or legitimate public use if such public use stems from bad faith or pretext. So even if there is an alleged unimpeachable public use (such as a public park), the administrative agency’s taking is declared invalid if the plaintiff can prove bad faith or pretext associated with said public use.¹⁵¹ This is a stronger iteration of what the Ninth Circuit decided in Scott Lumber and Southern Pacific. The Ninth Circuit provided the condemnees with an opportunity to present evidence that could, in theory, demonstrate bad faith or arbitrariness by the administrative agency. But again, realistically, because the evidentiary bar is high and administrative agencies are (automatically) given much deference, such efforts will likely fail. The Seventh Circuit, on the other hand, made “public use” determinations conditional on there being no bad faith and reserved the judicial right to dig deeper to see if legislative deference is warranted.

In United States v. 58.16 Acres of Land—a 1971 Seventh Circuit decision—a husband and wife owned a 58.16-acre tract which primarily contained farmland on which the landowners’ home stood.¹⁵² The United States wanted to take this farmland for purposes of flood control and reduction of flood crests.¹⁵³ The landowners then argued that the United States’ action was “arbitrary, discriminatory, capricious, vindicative, and in bad faith,” thus warranting a “valid defense to the condemnation proceeding.”¹⁵⁴ Or, in short, landowners contended that the asserted public use (to prevent flood control and reduce flood crests) was a pretext. To prove this, they cited their repeated complaints to the government regarding erosion and the government’s “failure to maintain proper water levels” from 1968 through 1970.¹⁵⁵ The landowners went on to stress that “no [government] action had [ever] been taken to repair the damage or to prevent further erosion.”¹⁵⁶ After three years of refusing to fix the issue and not responding to any of the landowners’ complaints, the government responded to the complaints in 1971, informing the landowners that condemning their property would be much cheaper than protecting it from erosion or floods.¹⁵⁷

It was unclear to the Seventh Circuit why the district court judge denied without merit the motion to vacate the order for possession.¹⁵⁸ The Seventh Circuit surmised that perhaps the reason the motion had been denied without merit (i.e., the motion was basically deemed frivolous) was that the district judge found against the landowners’ bad faith claim.¹⁵⁹ Or, as the Seventh Circuit further posited, perhaps the district court ruled that way because the court thought that the administrative decision to condemn the land “was [simply] not judicially reviewable”—given that there was an alleged public use, regardless of the substantial pretext evidence.¹⁶⁰

The Brinkmann majority also greatly relied on a “longstanding policy of deference to legislative judgments” to rationalize inaction.¹⁶¹ Brinkmann is actually far from being the only court that emphasizes legislative deference in the takings context; it is neither a novel argument nor dispositive. For instance, even in 58.16 Acres of Land, the Seventh Circuit emphasized that “once the question of the public purpose has been decided, the amount and character of land to be taken . . . rests in the discretion of the legislative branch.”¹⁶² But the Seventh Circuit does not use this discretion to justify its own inertia. To the contrary, while the Seventh Circuit acknowledges and even embraces legislative deference, it nevertheless considers it proper for the judicial branch to “materially . . . aid[]” public use analysis “by exploring the good faith and rationality of the governmental body in exercising its power of eminent domain.”¹⁶³ Therefore, the two—that is, a substantive bad-faith takings analysis and deference to the legislative branch—are not mutually exclusive. According to the Seventh Circuit, the “determination of the extent, amount or title of property to be taken . . . rests wholly in legislative discretion,” assuming there is (1) an “absence of bad faith” and (2) the “determination” to condemn was “made in good faith.”¹⁶⁴ These “restraints” that the Seventh Circuit cleverly placed serve as evidence of how bad-faith takings analysis can peacefully co-exist with legislative deference.¹⁶⁵

The main takeaway here is that the Seventh Circuit emphasized that the district court was “required to resolve . . . questions” of “bad faith, arbitrariness, and capriciousness,” all of which bore upon the “determination of public use.”¹⁶⁶ The Seventh Circuit is firm that there is no valid public use without an absence of bad faith and a presence of “good faith and rationality of the governmental body in exercising its power of eminent domain,”¹⁶⁷ and this assertion runs directly counter to the Brinkmann majority.

While the Ninth Circuit was, in theory, willing to look at evidence of bad faith, which would potentially invalidate the taking, the Seventh Circuit made a pronouncement with which the Brinkmann majority would certainly disagree. Specifically, if there is strong evidence of bad faith or arbitrariness (and the Brinkmann majority acknowledged that there had been), there can be no legitimate public use, making the taking invalid. Unlike the Seventh Circuit, the Ninth Circuit does not make a valid public use expressly dependent upon a lack of bad faith. Regardless, both circuits prioritize and actively consider evidence of bad faith, so they can draw an inference of a taking’s validity.

IV. WHAT NOW?

The purpose of Part IV is to examine the Brinkmann fallout, while remaining solution-oriented with an eye toward the future. This Note examines which standard of review could be used to evaluate bad-faith takings on a federal level, focusing on the tripartite burden-shifting framework and also discussing the downsides of the Equal Protection Clause and the doctrine of unconstitutional animus in the context of bad-faith takings. This Section continues to imagine what could be, with the intention to move forward jurisprudentially from Brinkmann to a more fair, uniform, and dignified approach to bad-faith takings.

A. The Dangers of Rational Basis Review

In the context of bad-faith takings, there is a conflict between rational basis review and the various forms of heightened review. While there exist various permutations of what heightened review can and should look like—and of course, much disagreement too—this Note will only closely examine the tripartite burden-shifting framework. But first, rational basis review.

One cannot talk about rational basis review in the context of property law without, yet again, mentioning Kelo. The Kelo majority “declared that a taking should be upheld as consistent with the Public Use Clause,” just as long as it is “ ‘rationally related to a conceivable public purpose.’ ”¹⁶⁸ This “deferential standard of review echoes the rational-basis test.”¹⁶⁹ And rational basis review is extremely deferential to the legislative process—so much so that a “challenged law will be upheld if it could be rationally interpreted as advancing any conceivable legitimate public purpose.”¹⁷⁰ In fact, “even the ‘flimsiest’ of reasons will survive [said] scrutiny.”¹⁷¹ Courts are known to grant this legislative deference “even if there is nothing other than judicial speculation” to imply that the government was trying to advance a public purpose when enacting the law.¹⁷² This is precisely what happened in Kelo.

Under Kelo, a mere prediction (or judicial speculation) that some public use will generate some secondary public benefit is enough.¹⁷³ Even the Kelo majority itself, likely sensing a risk for the potential abuse of eminent domain under rational review, suggested that states can and should place “further restrictions” upon the takings power.¹⁷⁴ A large concern with this standard is that the embedded presumption of permissibility within the rational basis of review may “motivate[] trial judges to see no evil, hear no evil, and speak no evil” even in takings cases which “fail the smell test”¹⁷⁵—chief among them the Brinkmann case.

In the takings context, rational basis review can invalidate two types of condemnations: (1) when the “asserted purpose is not a cognizable public purpose” and (2) when there is a “clear intention to benefit a private party.”¹⁷⁶ Takings driven by bad faith (such as discrimination or arbitrarily forbidding a property owner from running a regulation-abiding family business) do not fall into either category. Why? Because an asserted public purpose such as a park is a cognizable public purpose, and discrimination would likely not involve a conveyance of private benefit upon a private party. This is why Justice Kennedy’s concurrence in Kelo suggested that “a more stringent standard of review” might be suitable for a “more narrowly drawn category of takings,” though largely referring to takings marked with “impermissible favoritism.”¹⁷⁷

To clarify, favoritism alludes to the governmental entity’s inherent reason “for favoring a certain party”; these reasons range from corruption to “a complex web of social and business relations.”¹⁷⁸ One could arguably view favoritism as a particular form or sub-category of bad-faith taking, one that punishes a property owner to benefit someone else. Favoritism is prohibited “out of concerns for basic fairness.”¹⁷⁹ The same exact logic, however, applies to takings which are marked by other kinds of bad faith, manifested in things like discrimination, racism, or animosity toward specific individuals—this, too, violates our inherent sense of fairness. Although Justice Kennedy’s concurrence speaks to issues of favoritism in the takings context, the reasoning outlined in the concurrence can be extrapolated further to other kinds of bad faith.

Justice Kennedy made reference to a more heightened standard of review, but he did not actually delve into the logistics of this more “stringent” standard.¹⁸⁰ For instance, it remains unclear as to which situations warrant a “meaningful rational-basis review that in [Justice Kennedy’s] view is [always] required under the Public Use Clause” versus those meriting a “demanding level of scrutiny” which in some cases even justifies a “rebuttable” “presumption of [a taking’s] invalidity” if the “risk of undetected impermissible favoritism of private parties is [] acute.”¹⁸¹ Would Justice Kennedy’s “demanding level of scrutiny” be akin to strict scrutiny? Rational basis plus? Justice Kennedy’s Kelo concurrence is vague on these questions. Justice Kennedy also failed to identify what evidence would trigger these standards or what exactly the court is supposed to do with said evidence of favoritism,¹⁸² an omission for which he received much criticism.¹⁸³

This Note disagrees with the assertion that Justice Kennedy exclusively referred to “rational basis plus” review.¹⁸⁴ Justice Kennedy referred to multiple standards. And yes, while Justice Kennedy’s Kelo concurrence creates much unnecessary confusion, that is the nature of the contemplated standards. Thus, the extra layer of complexity should not be swept under the rug. In fact, certain scholars even argue that the criteria¹⁸⁵ Justice Kennedy considers (which supposedly triggers some form of heightened scrutiny) directly “collid[e]” with the Kelo majority’s assertion that there should be no “intrusive scrutiny”¹⁸⁶—suggesting that Justice Kennedy indeed took it a step further than rational-basis-plus review. Accordingly, this Note posits that in addition to rational-basis-plus review, Justice Kennedy was also hinting at something even more demanding.

Furthermore, although not a focus of this Note, prudence demands a discussion, albeit brief, of rational-basis-plus review. Although Justice O’Connor characterizes it as a “more searching form of rational basis review,”¹⁸⁷ the Supreme Court “has never acknowledged its existence” and Justice Scalia downright denied it.¹⁸⁸ Previous inquiries into this doctrine (such as the “justification” of its presence or the “underlying theory”) were “the equivalent of a constitutional snipe hunt, and about as productive.”¹⁸⁹ Overall, there certainly exists the notion that the doctrine is “suspicious” and “problematic,” given that it “lack[s] an articulated basis in principle” and “is impossible to either apply or constrain in a principled way.”¹⁹⁰ Also, on a more practical level, it is often difficult to identify which level of scrutiny the court actually applied (i.e., rational basis versus rational-basis-plus) and most of the time this distinction is rooted in mere speculation.

Contrast the rational-basis-plus review doctrine with the burden-shifting evidentiary framework first put forth in McDonnell Douglas Corp. v. Green, a 1973 Supreme Court case.¹⁹¹ This framework has frequently been used to analyze claims of discriminatory treatment such as discrimination claims under the Americans with Disabilities Act and Title IX gender discrimination claims.¹⁹²

Thus, this Note will next explore the McDonnell Douglas burden-shifting evidentiary framework for purposes of steering bad-faith takings analysis in a more uniform and fair direction.

B. Heightened Review: The Tripartite Burden-Shifting Standard

In the context of takings, this standard was originally proposed by Daniel Kelly to examine takings which are rooted in favoritism only.¹⁹³ The goal of this Note is to see how this framework would operate in the context of takings driven by discrimination and bias.

Direct Versus Indirect Evidence

In part one of the analysis, an allegedly wronged employee can either produce direct or indirect evidence of discrimination.¹⁹⁴ Similarly, a condemnee would be required to demonstrate that a taking is tainted with favoritism via either producing direct or indirect evidence.¹⁹⁵ Direct evidence could essentially act as a “smoking gun.”¹⁹⁶ And in the context of favoritism, for example, direct evidence could be satisfied by an email exchange between some private developer and a municipal official in which it is clear that the “actual purpose of the taking [was] to benefit the [private] developer.”¹⁹⁷ This is a high burden to satisfy, so the indirect evidence would be more practical. The condemnee (again, in the favoritism context) would need to prove two elements: (1) that the “project involves a private party” and (2) said private party “might obtain a distinct benefit” (given that “favoritism is only possible in a project in which a private party expects to obtain an advantage”).¹⁹⁸

In the context of other kinds of bad faith, the analysis would look something like this: If the condemnee who (allegedly) was on the receiving end of bad faith decides to take the direct evidence route, they would be required to demonstrate some form of smoking gun. For example, a documented exchange in which municipal officials exhibit disdain for the condemnee—whether it be discrimination, racism, homophobia, or something else. There are a few issues with the direct evidence route, however. For instance, how likely is it that a condemnee will obtain records of these discriminatory written exchanges from multiple municipal officials, and not just one? If the animosity toward the condemnee stems from just one municipal official, should this suffice as conclusive evidence of bad faith? For instance, other municipal officials on the same board may have voted for condemnation under a genuine belief that condemnation would promote an actual public interest. Another issue with direct evidence is that most conduct is simply not marked with blunt evidence of discrimination. Further, municipal officials can easily argue that something they said was taken out of context—which may raise evidentiary issues—or was misinterpreted. So, it is therefore unlikely that a condemnee would easily satisfy the direct evidence threshold.

As to indirect evidence, Brinkmann supplies a great example. In a nutshell, the Brinkmanns could argue that the Town of Southold engaged in multiple machinations to prevent construction of the Brinkmanns’ hardware store (allegedly ranging from pressuring the bank to breach its contract with the Brinkmanns¹⁹⁹ to inventing moratoriums).²⁰⁰ So what kind of evidence would the Brinkmanns need to show to satisfy this indirect evidence standard and establish a prima facie case of bad faith, thus satisfying the first element of the tripartite burden-shifting framework and thereby shifting the burden onto the Town to prove that the taking was not driven by bad faith? Largely mirroring the requirements of a Title VII claim, the Brinkmanns would be required to show that:²⁰¹

Either
- They are members of a protected group (think religion, race, pregnancy, sex, gender, sexual orientation, national origin, etc.) or
- Their fundamental right was infringed upon (although the right to own and use property has not been deemed a fundamental right, certain scholars have argued that such rights “need to be protected with nothing less than the judiciary’s strictest level of scrutiny.”²⁰² This is certainly an

expansion of the framework, but an argument worth considering)

(2) That they have applied and complied with all requirements in their permit application;

(3) That, although the Brinkmanns complied with all regulatory requirements,

The Brinkmanns’ permit application was rejected and
The municipality decided to seize the Brinkmanns’ land via eminent domain; and

(4) That, after the rejection,

The municipality continued to grant permit applications to similarly situated individuals and
Did not seize property of similarly situated individuals (such as adjacent lots with virtually identical characteristics, for instance).

If the Brinkmanns successfully demonstrate indirect evidence, then the burden would shift to the governmental entity to articulate some “legitimate, nondiscriminatory” reason for the permit’s rejection and subsequent taking.²⁰³

Beyond a Merely Cognizable Reason for Condemnation

As to the second element of the test, the burden would then be on the municipality to articulate a legitimate, non-bad faith driven reason as to why it rejected the Brinkmanns’ numerous permit applications and decided to take their land.²⁰⁴ In analyzing favoritism-motivated takings, Kelly emphasizes that a condemner’s mere articulation of some cognizable public purpose (such as “preserving open space” or “generating new jobs”) would be insufficient to satisfy this element.²⁰⁵ A condemner would instead be required to show why a specific kind of private involvement is required for the project to take place.²⁰⁶ For instance, perhaps said private party possesses some crucial information or expertise that other similarly situated experts do not.²⁰⁷

The Town of Southold would satisfy this element by showing that their reason for rejecting the Brinkmanns’ permit and taking their land was not driven by bad faith. What would be that “reasonable basis” for taking the Brinkmanns’ land?²⁰⁸ This could be a wide array of things. Perhaps the Brinkmanns’ business was not compliant with regulations, or their proposed business constituted a hazard, a nuisance, or a danger to others, compelling the municipality to act to protect the safety of its residents. But such claims would require actual empirical evidence (e.g., studies done by civil engineers who hold proper qualifications) suggesting that the construction of a hardware store in that specific location would lead to a significant increase in traffic and thus present a real danger to residents. Further, these experts should be subject to cross-examination.

Elevated Risk of Pretext/Bad Faith

If the condemner (in this case, a municipality) meets the burden outlined in the previous element, the “presumption” of intentional bad faith would disappear.²⁰⁹ The condemnee can nevertheless prove “disparate treatment” by showing that a condemner’s explanation is pretextual.²¹⁰ In the context of favorability, a condemnee would satisfy this element by demonstrating a heightened risk of impermissible favoritism.²¹¹ For instance, a condemnee could show that a municipality was “capable of selecting a private party through a competitive process but decide[d] not to do so.”²¹²

By analogy, for purposes of demonstrating a heightened risk of pretext, the Brinkmanns could demonstrate any of the following (this list is non-exhaustive):

(1) An overwhelming majority of Town residents did not want a passive use park²¹³ or actively advocated for the Brinkmanns’ hardware store;

(2) The Town had not considered any other alternatives before condemning Brinkmanns’ land and ignored the empty adjacent lot;²¹⁴

(3) The Town decided to condemn the Brinkmanns’ land only after the Brinkmanns announced their plans to build a regulation-abiding, family-owned hardware store;²¹⁵

(4) The Town became interested in acquiring the Brinkmanns’ empty lot only after the court allowed the Brinkmanns to proceed with their claim against the Town’s moratorium;²¹⁶

(5) The Town never hired any professionals to evaluate whether the Brinkmanns’ property was suitable for a park;²¹⁷

(6) The “projected . . . benefits” of a passive use park were and remain de minimis and “trivial.”²¹⁸

Now, the Town could argue that because a park is an established public use, it was allowed to take the Brinkmanns’ land, given that there is a presumptive benefit to the public.²¹⁹ This line of argumentation should not be allowed (just as it is not allowed in the second element of this test) because that would make this test regress back into rational basis review. Furthermore, because this test largely centers around the risk of ill motive, the condemnees (like the Brinkmanns) should not be required to establish actual ill motive. All they would be required to show is an elevated or substantial risk of bad faith conduct. So for purposes of this last element, it should be sufficient for the Brinkmanns to demonstrate that there is a heightened risk that the municipality’s taking is not justified; this can be achieved via a showing of 1-6, or some robust combination thereof.

C. So What About the Equal Protection Clause?

The Brinkmann majority cited the Equal Protection Clause as an example of a hypothetical potential avenue available to those afflicted by governmental takings instead of the Takings Clause.²²⁰ But the Equal Protection Clause is a trap because it largely falters at the level of rational basis review, despite the existence of two other standards for Equal Protection Clause analysis (intermediate scrutiny and strict scrutiny). Under rational basis review, most condemnees will simply never meet the burden of proving that there is an absence of any legitimate municipal interest in condemnation. A cheap park or an empty playing field will satisfy that legitimate municipal interest just fine, or so rational basis review will typically find.

The Three-Tier Framework

The Equal Protection Clause of the Fourteenth Amendment states that no state shall “deny to any person within its jurisdiction the equal protection of the laws.”²²¹ When someone wants to argue that their equal protection rights were violated (in the context of challenging eminent domain takings), they are required to initiate suit under 42 U.S.C. § 1983.²²² To prevail on a § 1983 claim, the condemnee must successfully demonstrate two elements: (1) that their federal right was violated (that is, their right to “equal protection under the law as guaranteed by the Fourteenth Amendment”) and (2) the defendant “who violated [their] right did so under the color of state law.”²²³ The defendant who is alleged to have violated the condemnee’s equal protection rights can be a person or entity “who effectuated the condemnation proceeding.”²²⁴ Thus, “local governing bodies” and “local officials” can be sued under § 1983 when their alleged unconstitutional action essentially violated the condemnee’s equal protection rights.²²⁵

Equal protection jurisprudence is analyzed under three tiers: strict scrutiny, intermediate scrutiny, and rational basis scrutiny.²²⁶ Rational basis review is the “default standard” and is the “lowest level of judicial scrutiny.”²²⁷ Under rational basis review, the burden would be on the condemnee to show the absence of any legitimate municipal interest served by the condemnation.²²⁸ An overwhelming majority of equal protection cases are assessed under this very deferential standard.²²⁹ This means that plaintiffs overwhelmingly lose under rational basis review.²³⁰ In fact, the “number of rational basis cases in which plaintiffs have prevailed is so small that these cases have become an object of study in and of themselves.”²³¹ For example, between 1971 and 1996, the Supreme Court “considered one hundred ten rational basis equal protection cases” and “of these cases the plaintiffs won only ten times,” rendering a nine percent success rate.²³² The Brinkmanns, for instance, would never prevail under this standard: A park is a recognized public use and even a park that is devoid of any facilities could rationally be said to benefit Town residents. The Town residents could still hold picnics there or let their kids run around. So, under rational basis review, the Town would be viewed as having had some conceivable or possible interest in condemning the Brinkmanns’ land.²³³

As to strict scrutiny, courts may depart from rational basis review in two instances: (1) when there is either a suspect or quasi-suspect classification or (2) a fundamental right at issue.²³⁴ These two are jurisprudential rabbit holes and thus beyond the scope of this Note, but the following are deemed examples of suspect classifications (thereby triggering strict scrutiny): race and national origin.²³⁵ Age, disability, and economic disadvantage—among many others—do not qualify as suspect classifications and would only be subject to rational basis review.²³⁶ In the takings context, the “suspicion” comes from the very fact that a government or municipality may have relied on one of these classifications when making the condemnation decision (in the takings context).²³⁷ Such reliance would indicate “prejudice or antipathy toward the named group rather than a basis for sound [decision].”²³⁸

A fundamental right, on the other hand, has a much more confusing roadmap, or lack thereof: despite the fact that strict scrutiny “presupposes” so-called fundamental rights, the strict scrutiny formula gives absolutely “no guidance concerning how the identification [of rights violations] should occur.”²³⁹ Some of the recognized fundamental rights are the right to vote,²⁴⁰ the right to have children,²⁴¹ and the right to travel interstate.²⁴²

Categories of suspect class and fundamental right are now considered to be “seemingly closed,” making strict scrutiny, therefore, “virtually inaccessible” unless there is an already recognized suspect classification or a fundamental right at play.²⁴³ The Supreme Court has not “conferred suspect status on any [new] group since the 1970s,” even for “groups widely acknowledged to have suffered invidious treatment.”²⁴⁴

And the Brinkmanns, along with most other condemnees, would most likely not even make it to strict scrutiny analysis under the Equal Protection Clause in the first place. For instance, in Brinkmann, there was no alleged or potential suspect classification. And a property right is not a fundamental right in the eyes of substantive due process.

If a governmental action imposes a facially neutral classification (i.e., the law does not, on its face, single anyone out in particular, thereby implicating no suspect classification), condemnees could still argue that:

(1) The governmental action has a disparate impact (i.e., disadvantages a certain group of people) AND

(2) The governmental action was taken purposefully to harm this particular group of people (e.g., on the basis of race).

Although this would be an alternate pathway to strict scrutiny, most condemnees’ claims will likely fail prong #2’s discriminatory intent test and be given the short shrift of rational basis review instead.²⁴⁵ To demonstrate prong #2, condemnees (such as the Brinkmanns) would need to prove that a decision to condemn was because the government wanted to harm a certain group of people, not “in spite of” their decision to condemn having a disparate effect on a certain group of people.²⁴⁶ That is, the Brinkmanns would need to prove that the Town initiated this bad faith condemnation action precisely because of the Town’s intent to cause “adverse effects” upon the Brinkmanns as members of an “identifiable group” (assuming that the Brinkmanns had been members of an identifiable group).²⁴⁷ Proving such discriminatory intent is widely acknowledged as being “exceptionally difficult” to do,²⁴⁸ and this is another reason why most claims are subject only to rational basis review.

Doctrine of Unconstitutional Animus

This Note also acknowledges the doctrine of unconstitutional animus, which is based largely on the Equal Protection Clause.²⁴⁹ At first glance, it presents an attractive solution: If a municipality’s condemnation is motivated by animus, why can’t the court just strike it down? Why is the Takings Clause even necessary? But unconstitutional animus has some glaring problems.

Unconstitutional animus is basically a loophole that allows an equal protection claimant to possibly prevail under rational basis review.²⁵⁰ While that would be good news for the Brinkmanns, the bad news is that it is, at best, unclear what constitutes forbidden animus.²⁵¹ A law (or a decision to condemn, for instance) is animus-based if it is “based on nothing more than bias, hatred, or dislike.”²⁵² The Supreme Court has defined animus as “a bare . . . desire to harm” a person, which is a high burden to meet.²⁵³ For one, what if a condemnation is based on both animus and some animus-free “public-regarding objective”?²⁵⁴ For instance, in Brinkmann, both the Town residents and even the dissenting judge (pursuant to the Brinkmann majority’s snarky suggestion) could come to the park, “breathe its air” and

“spread [a] picnic.”²⁵⁵ A public park is, by definition, for the public to enjoy, and would thus constitute a public-regarding objective.

The definition of “animus” poses further issues. To illustrate, neither “religious belief[s]” nor “personal morality” are necessarily equated with animus.²⁵⁶ Take the 2015 Supreme Court decision, Obergefell v. Hodges, for instance.²⁵⁷ Although the Obergefell Court held that prohibiting same-sex couples from marrying violated both the Equal Protection Clause and substantive due process, the Court also noted that it declines to “disparage” those who “deem same-sex marriage to be wrong . . . based on decent and honorable religious or philosophical premises.”²⁵⁸ So when is it a decent and honorable religious belief and when is it animus-based homophobia?²⁵⁹ How does the court draw a consistent or predictable line between prejudice and a decent and honorable personal belief? This absence of a framework on how to arrive at a decision that something indeed constitutes animus is the reason that lower courts have been “wary of relying on animus” in the first place.²⁶⁰

Further, this doctrine necessitates an inquiry into subjective motivations of those officials who decided to condemn property. This takes us back to one of the Brinkmann majority’s concerns: that motivational inquiry is an “exercise as fraught with conceptual and practical difficulties.”²⁶¹ And the Brinkmann majority, in the context of unconstitutional animus, would not be wrong because the unconstitutional animus doctrine has been criticized as “analytically empty, a conclusion clothed in argument.”²⁶² The unconstitutional animus doctrine largely sits on a famously shaky foundation of just four cases (the so-called “animus quadrilogy”).²⁶³ Some scholars even argue that three of these cases “could and should have relied instead on [the traditional] equal protection doctrine for suspect and quasi-suspect classifications,” thereby expanding the suspect and quasi-suspect classifications.²⁶⁴ The unconstitutional animus doctrine is simply not as robust as the Takings Clause or the three tiers of scrutiny under the Equal Protection Clause. In contrast to the doctrine of unconstitutional animus, various bad-faith takings frameworks (all directly arising from the interpretation of the “public use” language in the Takings Clause) were already employed by the Ninth Circuit in Southern Pacific and Scott Lumber, the Seventh Circuit in 58.16 Acres of Land, and even the Connecticut Supreme Court in New England Estates. Although future jurisprudential analysis may well be able to rely on a vigorous animus framework, the current lack of such a framework, along with its high bar for success, makes animus analysis a suboptimal solution.²⁶⁵

D. Brinkmann Implications

At its core, Brinkmann is more than just bad law. It is actually dangerous because it incentivizes governmental entities to lie when condemning someone’s land, which in turn denies basic accountability to the public. Under Brinkmann, any bad-faith taking can receive judicial blessing if the government or a municipality simply utters words like “passive use park” or “playing field.” Discrimination can be sanitized in this manner. Likewise, racism and outright hostility. In Brinkmann, the Town stated at oral argument that, under the Brinkmann majority’s interpretation of public use, it would be perfectly acceptable for the Town to “seize the homes of disfavored minorities out of animus toward those minorities and a desire to drive them out,” just so long as the Town “said it would build parks where the minorities’ homes once stood.”²⁶⁶ Frighteningly, the Town’s analysis is not incorrect under the Brinkmann rule. Even scarier is that this is now the law in the Second Circuit, and this is what the Second Circuit has authorized condemnors to do.

Law has real world consequences. For instance, Kelo expanded the concept of public purpose to “encompass any economically beneficial goal, guarantee[ing] that these losses [of property] will fall disproportionately on poor communities.”²⁶⁷ Kelo gave a green light to “large corporations and development firms” to “victimize” people who are “less likely to put their lands to the highest . . . social use.”²⁶⁸ Kelo essentially “affirmed that a government may take the private property of one party and give it to another private party if the other pays more taxes.”²⁶⁹ It did not take long to confirm that Kelo “engendered fear across the nation”:²⁷⁰ in the year immediately after Kelo was decided, the Institute for Justice “found that 5783 properties ha[d] been [either] threatened or condemned for private commercial development, roughly equal to the number of such condemnations in the five years preceding Kelo.”²⁷¹ Scholars also found that this Kelo-authorized “private involvement in the exercise of eminent domain” increased the risk of corruption and threat of relocation.²⁷²

Berman serves as another notable example. Over 97% of the people “forcibly removed from their homes”²⁷³ were Black—all for the declared sake of “public safety, public health, morality, peace and quiet, law and order.”²⁷⁴ Post-Berman, “public works projects [of the] 1950s and 1960s destroyed predominantly minority communities in St. Paul, Minnesota, and Baltimore, Maryland.”²⁷⁵ And in 1981, “urban planners in Detroit, Michigan, [used eminent domain to] uproot[] the largely ‘lower-income and elderly’ Poletown neighborhood for the benefit of the General Motors Corporation.”²⁷⁶

So, what will Brinkmann’s impact be? While it is uncertain to what extent it will inform the actions of governmental entities, the impact will certainly not be a societal positive. Instead, it will continue its catastrophic trajectory because Brinkmann encourages, and even rewards, municipalities to lie about their intentions behind condemnation decisions.

CONCLUSION

Sometimes there are more questions than answers, but sometimes asking good questions is better than any answer—an endeavor that is by necessity limited in scope and applicability. And perhaps, this is the case here. The Brinkmann decision raises a lot of questions, ranging from the Brinkmann majority’s disregard of their own Goldstein precedent to a likely misinterpretation of Kelo, which cost the Brinkmanns their lot.

But Brinkmann also sparks an important conversation concerning what could and should be employed instead of the Brinkmann rule. After examining decisions rendered by the Connecticut Supreme Court and the Seventh and Ninth Circuits, all of which stand in opposition (in varying degrees) to Brinkmann, this Note envisions an alternative to the Brinkmann rule via the tripartite burden-shifting standard. But that is not all. This Note also demonstrates the failings of rational basis review, the Equal Protection Clause, and the animus doctrine when applied to addressing bad-faith takings.

The Takings Clause can destroy lives, but it can also build and improve the society in which those same lives exist. Similarly, the Takings Clause can also preserve freedom and even “empower[]” people “to shape and to plan their own destiny in a world in which governments are always eager to do so for them.”²⁷⁷ It is all a matter of perspective, but also—and critically—cultivating good law.

99 S. Cal. L. Rev. 405

Download

Anna Fein*

*Articles Editor, Southern California Law Review, Volume 99; J.D. Candidate 2026, University of Southern California Gould School of Law; B.A. English 2022, University of California, Los Angeles. Thank you to Professor Jacob Charles, Professor Jonathan Barnett, Lance Entrekin, and the wonderful Southern California Law Review staff for their thoughtful comments. Thank you also to my family for their continued love and support.

Property and Prejudice

April 2025April 2025Fatma Marouf* & Vanessa Casado Pérez†

“Alien land laws”—laws restricting noncitizens from owning real property—are back. A dozen states have enacted such laws during the past year, and over thirty states have considered such bills. These new bills are rooted in xenophobia, much like their predecessors, but they also have unique characteristics. They single out governments, citizens, and corporations of specific countries perceived to pose a threat; they impose ownership restrictions based on arbitrary distances to U.S. military bases and critical infrastructure; they inflict particularly harsh penalties; and they try to ferret out foreign control in complex corporate structures. The purported justifications are national defense, food security, and prevention of absentee ownership. But these laws completely fail to achieve their asserted goals. The poor means-end fit, combined with the availability of far less restrictive alternatives, leaves the new laws vulnerable to legal challenges under the Equal Protection Clause and the Fair Housing Act. But century-old Supreme Court precedents and gaps in legal doctrine may still make it difficult for such challenges to prevail. Preemption arguments based on immigration law, the foreign affairs power, and federal laws governing foreign investment, as well as Dormant Commerce Clause arguments, also involve legal hurdles. This Article analyzes these legal arguments, evaluates potential obstacles, and charts possible paths forward. Regardless of the legal viability of these laws, this Article cautions that they will perpetuate prejudice, open the door to a new form of segregation, and limit who can achieve the American Dream.

INTRODUCTION

Sun Guangxin, a Chinese real estate tycoon, owns 140,000 acres of land in Val Verde County, Texas, near an Air Force base close to the border.¹ He spent approximately $110 million on real estate purchases, paying above-market prices for plots that were not on the market.² But Mr. Sun did not buy this land himself. He used a Texan intermediary, who bought the land and transferred it to Mr. Sun’s company, GH America Energy LLC, a subsidiary of the China-based Guanghui Energy Company.³ The plan was to establish a wind farm and produce renewable electricity for the Texas grid.⁴

Environmentalists opposed the wind farm, but their concerns did not gain traction until they framed the wind farm as a threat to national security due to its location.⁵ That got the attention of Senator Ted Cruz and state legislators, who began campaigning against the wind farm.⁶ This campaign became a catalyst for several bills in Texas that restricted foreign ownership of land.⁷ The bill that received the most traction prohibited real property ownership by any businesses headquartered in China, Iran, Russia, and North Korea or owned or controlled by citizens of those countries, as well as by individual citizens and government actors from those countries.⁸

Texas is not alone. In the past year, bills have been proposed in over thirty states that would restrict foreign ownership of land, real estate, and natural resources.⁹ To date, a dozen of them have been enacted into law.¹⁰ Many of these laws single out specific countries perceived to be hostile, including, but not limited to, China, Iran, Russia, and North Korea. Some bills name countries directly, while others reference various federal designations, such as federal lists of “foreign adversaries” and “countries of particular concern.”¹¹ A few bills are a bit more subtle, restricting ownership by “state-controlled enterprises,” which are most common in China,¹² or citing statutes that address only Chinese military companies.¹³

These laws fan the flames of rising anti-Chinese sentiment. Over 80% of the U.S. population currently holds an unfavorable view of China.¹⁴ Fear of China’s economic and military power,¹⁵ disapproval of China’s foreign policies and human rights abuses,¹⁶ media reports blaming China for the COVID-19 pandemic,¹⁷ and angst over espionage,¹⁸ as well as explicit or implicit biases,¹⁹ fuel these views. Of course, most Chinese investors seeking to buy property in the United States are not acting as pawns of the Chinese Communist Party. Instead, they may be families trying to move their money beyond the reach of the Chinese government, investing to ensure that their children get a good education, or hoping to establish themselves in the United States.

Despite the new context, these laws conjure up one of the darkest periods of U.S. immigration history, involving Chinese Exclusion²⁰ and an Asiatic Barred Zone that swept across a continent.²¹ The history of alien land laws is intertwined with racial exclusions from U.S. citizenship and the creation of hierarchies based on race, national origin, and alienage.²² As California’s Attorney General said in 1913 when he championed the state’s alien land law aimed at limiting the presence of Japanese immigrants: “[T]hey will not come in large numbers and long abide with us if they may not acquire land.”²³ A century ago, the U.S. Supreme Court upheld California and Washington’s alien land laws, and it has never revisited the issue.²⁴ These lingering precedents from an unabashedly racist era are now being relied on by states eager to stretch the limits of traditional state powers like regulating the transmission of property and to influence the federal domains of immigration, national security, and foreign affairs.

This new wave of alien land laws differs from prior waves in important respects.²⁵ First, the naming of specific countries and use of certain federal lists reflects a new form of national security creep. This national security slant also appears in the heightened restrictions placed on property located within a certain distance of critical infrastructure, such as military bases and weather stations. While some states have found ten miles to be a safe distance, others require fifty miles, suggesting an arbitrariness to the restrictions imposed. The new laws also seek to ferret out foreign control in more complex corporate structures than ever before. And they punish violators with harsher criminal penalties than in the past.

While the laws purport to protect national security and food security, and to prevent absentee landownership, they are poorly designed to achieve these aims. Foreign ownership of U.S. real property is minimal. Only 2.9% of privately held agricultural land²⁶ and 1.8% of residential real estate²⁷ is foreign-owned. Additionally, the major foreign owners of agricultural land are not from the countries targeted by the new state laws. While China is second only to Canada on the list of foreign countries whose citizens are buying U.S. residential properties,²⁸ their share of US land is very small. Foreigners own 31% of the land in the U.S., but Chinese investors represent only 1% of all foreign-owned land.²⁹

But even assuming there are compelling government interests at stake, the means used to achieve them are ineffective. These laws will not solve the problem of foreign interests and corporate consolidation driving the real estate and agricultural markets, as sophisticated players can easily circumvent the restrictions. For example, because most of the laws do not restrict leases, a foreign-owned business could just lease land from local landowners. The restrictions on landownership will also not increase national security in an era of cyber warfare, drones, and spy balloons. Furthermore, some of these alien land laws target only ownership and not leases. A tenant occupying a property near a military base can be as dangerous as the owner of that land, if not more. This new wave of alien land laws also fail to prevent absentee landownership because they generally exempt noncitizens residing in other U.S. states, along with all U.S. citizens and permanent residents regardless of their location. Less restrictive alternatives to some of the proposed or enacted laws could include simply limiting the amount of land that foreigners may own, requiring owners to reside or work on the land to avoid absentee ownership, or creating exceptions for residences if the main concerns are agriculture and food.

Given the poor means-end fit, the true purpose of the laws appears to be symbolic. These laws may simply be a way for politicians to capitalize on the xenophobic sentiments of their electoral base. Sadly, their nefarious social effects will extend well beyond the real estate market.³⁰ Like racist property restrictions of the past, the new laws will subordinate minorities. Excluding people from home ownership keeps them out of communities, deters immigration, impedes intergenerational transfers of wealth, and obstructs personal flourishing. Even people who are not directly affected by the new laws will suffer due to the chilling effect on the real estate market. Sellers will be hesitant, at best, to engage in transactions with anyone from a targeted country.

This Article examines potential legal challenges to the new wave of alien land laws. Part I provides historical background about prior waves of alien land laws. Part II describes the distinctive characteristics of the current wave. Part III explores possible statutory and constitutional arguments for challenging the new laws. First, Part III explores whether these laws violate the Fair Housing Act, which was enacted as part of the Civil Rights Act of 1968 and prohibits discrimination in housing based on race and national origin.³¹ Second, Part III examines whether the new laws violate the Equal Protection Clause, highlighting the underdeveloped nature of equal protection jurisprudence on alienage and national origin classifications. This Section also stresses the lack of means-end fit, which we argue should result in the laws being struck down under either strict scrutiny or rational basis review.³² Next, this Article analyzes whether the new state laws are preempted by federal immigration law, the federal foreign affairs power, or the federal regulatory framework involving the Committee on Foreign Investment in the United States (“CFIUS”).³³ Finally, this Article analyzes whether the new laws violate the Dormant Commerce Clause with respect to both domestic and foreign commerce.

Legal challenges to the new alien land laws will not be easy. A federal district court has already refused to enjoin Florida’s law, which not only restricts individuals and companies domiciled in certain countries but also singles out those domiciled in China for especially harsh treatment.³⁴ The legal questions raised by alien land laws will likely reverberate in other important contexts as well. States like Texas and Florida are increasingly looking for ways to use well-established state powers, including police and property powers, to challenge the federal government’s authority over international borders and immigration.³⁵ Alien land laws represent one, but by no means the only, way for states to do this. If no restrictions are placed on alien land laws by courts or the federal government, states could use them to create new forms of segregation, excluding immigrants from their territories by denying them a place to live. In short, these laws once again instrumentalize property for racial prejudice.

I. A BRIEF HISTORY OF ALIEN LAND LAWS

Alien land laws in the United States date back to colonial times and to the influence of the English feudal system.³⁶ English feudal laws were designed to secure allegiance to the Crown and initially prohibited aliens from purchasing land; then, the laws prohibited them from inheriting it.³⁷ England eventually abolished those restrictions by statute in 1870.³⁸ But alien land laws continued in the United States, sanctioned by common law.³⁹ Some early land laws were incorporated into state constitutions in explicitly racial terms. For example, in 1859, Oregon amended its constitution to prevent any “Chinaman” from owning property in the state and granted only “white foreigners” the same property rights as citizens, a provision that was not repealed for over one hundred years.⁴⁰

Scholars have previously categorized alien land laws into several waves.⁴¹ During the first wave, which extended from approximately 1880 to 1900, eleven states restricted alien ownership of real property in response to a depressed agricultural economy and concerns over absentee landowners.⁴² Congress also passed the Territorial Land Act of 1887, which “forbade extensive alien landholding in the organized territories, except by immigrant farmers who had applied for citizenship.”⁴³ The federal law aimed to prevent large, foreign-owned ranches from jeopardizing statehood for the territories.

The second wave of alien land laws were passed in the 1920s, as a result of resentment toward Japanese immigrants engaged in farming in California, Oregon, and Washington.⁴⁴ California’s law “was enacted and . . . enforced solely as a discriminatory law directed against the Japanese.”⁴⁵ California’s Attorney General at the time, Ulysses S. Webb, was transparent about its purpose, framing the central issue as “race undesirability.”⁴⁶ The California law carried criminal penalties and resulted in successful prosecutions;⁴⁷ it also led to severe financial losses with over 30,000 Japanese farmers abandoning “nearly 500,000 acres of California’s richest crop lands.”⁴⁸ Beyond these penalties, the law had a severe psychological impact, demoralizing and subordinating Japanese Americans.⁴⁹

Alien land laws passed at this time often excluded Japanese and other Asians by precluding noncitizens “ineligible for citizenship” from owning land.⁵⁰ As Keith Aoki observed, “ ‘aliens ineligible to citizenship’ was a disingenuous euphemism designed to disguise the fact that the targets of such laws were [Japanese].”⁵¹ Laws dating back to 1790 and 1870 excluded Asians from naturalizing.⁵² In 1922, the U.S. Supreme Court confirmed that a Japanese person could not be naturalized because he was not “white.”⁵³ The following year, the Court reached the same conclusion regarding someone from India.⁵⁴

That same year—1923—the U.S. Supreme Court upheld Washington’s and California’s alien land laws.⁵⁵ Both cases involved U.S. citizens who wanted to lease land to Japanese farmers. In Terrace v. Thompson, the Court reasoned that Washington had “wide discretion in determining its own public policy and what measures are necessary for its own protection and properly to promote the safety, peace and good order of its people.”⁵⁶ The Court explained that “in the absence of any treaty provision to the contrary, [a state] has power to deny to aliens the right to own land within its borders.”⁵⁷ Similarly, in Porterfield v. Webb, the Court found California’s law limiting property rights to those “eligible to citizenship” to be constitutional.⁵⁸ Two other U.S. Supreme Court cases decided that year upheld laws restricting the transfer of shares of a landowning corporation to aliens⁵⁹ and prohibiting food crop contracts with aliens.⁶⁰

But Supreme Court decisions issued in 1948 cast doubt on whether Terrace and Porterfield remained good law. In Oyama v. California, the Court invalidated a provision of California’s alien land law that deprived a U.S. citizen of Japanese descent of agricultural land paid for by his father.⁶¹ The Court found that the state had failed to offer any compelling justification for discriminating against a citizen “based solely on his parents’ country of origin.”⁶² The Court recognized that restrictions based on ineligibility for citizenship constituted discrimination based on “racial descent.”⁶³ That same year, in Takahashi v. Fish and Game Commission, the Court declared unconstitutional a California law that allowed only U.S. citizens to get fishing licenses, which was aimed at discouraging Japanese immigrants from returning to the state after their exclusion from the West Coast and internment.⁶⁴ Justice Black, writing for the Court, explained that “the power of a state to apply its laws exclusively to its alien inhabitants as a class is confined within narrow limits.”⁶⁵

In the years following Takahashi, the supreme courts of Oregon, California, and Montana invalidated those states’ alien land laws, recognizing their racist nature and finding them unconstitutional.⁶⁶ The Supreme Court of California opined that the law imposed on noncitizens “an economic status inferior to that of all other persons living in the state. ”⁶⁷ Other states decided to simply repeal their laws.⁶⁸ The Immigration and Nationality Act of 1952, which made naturalization race-neutral, rendered meaningless any remaining state laws that still tied property ownership to eligibility for citizenship.⁶⁹ But various other types of alien land laws remained. For example, in 1943, Wyoming had enacted an alien land law that prohibited Japanese Americans who had been in internment camps from buying land in the state, which was not repealed until 2001.⁷⁰

During the Cold War, a third wave of state laws emerged limiting the rights of foreigners to receive land by inheritance.⁷¹ The purpose of these laws was to keep U.S. wealth from communist regimes rather than to prevent noncitizens from owning land.⁷² This practice ended after the U.S. Supreme Court’s 1968 decision in Zschernig v. Miller, which invalidated an Oregon statute that conditioned a noncitizen’s inheritance right on reciprocal rights being granted to U.S. citizens.⁷³ The Court found that the Oregon law was preempted because it intruded on the federal government’s authority over foreign affairs.

A fourth wave of alien land laws occurred during the 1970s in response to media reports of increased foreign investment in U.S. farmland.⁷⁴ These laws generally restricted the type and amount of land that noncitizens could purchase. Media reports stoked fears that family farmers in the U.S. were threatened by foreign investment.⁷⁵ In 1972, the Wisconsin Supreme Court upheld an alien land law with “no racial implications” that restricted only the amount of land that could be owned by foreign investors, finding the law “sufficiently related to the state’s asserted desire to limit possibly detrimental absentee land ownership.”⁷⁶

The current wave of land laws has much in common with these prior waves. Anti-immigrant biases, xenophobia, and fears regarding the fate of family farmers all appear to be playing a role. But as discussed below, the new bills and law also have their own distinct characteristics.

II. RECENT BILLS AND LAWS: THE FIFTH WAVE

The fifth wave of alien land laws began around 2020 and rapidly gained momentum. In 2022 and 2023, dozens of bills were proposed across the country restricting the ownership of real property by individual noncitizens, foreign companies, and foreign governments.⁷⁷ To date, twelve of those bills have been enacted into law in Alabama, Arkansas, Florida, Idaho, Indiana, Louisiana, Montana, North Dakota, Oklahoma, Tennessee, Utah, and Virginia. These laws, like their predecessors, vary widely, both in terms of whom they restrict and what is restricted.

Some of the newly enacted laws focus on foreign governments and businesses rather than individuals.⁷⁸ Among the laws that apply to individual noncitizens, most restrict only “non-resident aliens,” while exempting “resident aliens.” Residence in this context generally refers to domicile in the United States,⁷⁹ but a couple of laws define a “resident alien” to mean a noncitizen who lives in the state.⁸⁰ Some of the laws require “resident aliens” to dispose of their real property within a certain amount of time if they no longer qualify as residents of the state.⁸¹

Other laws turn on immigration status rather than residence. For example, Louisiana’s law exempts anyone “lawfully present” in the U.S.⁸² Tennessee’s definition of a “sanctioned nonresident alien” explicitly excludes legal permanent residents.⁸³ North Dakota, like Minnesota, exempts not only legal permanent residents but also noncitizens who enter with certain types of temporary investor or trader visas that are available only to citizens of specific countries that have special treaties with the United States.⁸⁴

Like prior waves, many of the new laws place restrictions specifically on agricultural land and other natural resources.⁸⁵ Some are even more specific. Indiana, for example, has prohibited foreign business entities from owning agricultural land for the purpose of crop farming or timber production.⁸⁶ However, there are also novel types of restrictions. Notably, many of the new laws restrict ownership of land within a certain distance of a military installation or other “critical infrastructure.”⁸⁷ Other bills and laws apply broadly to any type of land or real property.⁸⁸

The following Sections take a closer look at some of the distinct characteristics of the new wave of alien land laws and proposed bills. These include singling out specific countries or nationalities by name, focusing on foreign adversaries, prohibiting landownership within a certain distance of military installations or critical infrastructure, focusing on agricultural land, imposing more severe penalties for violations, and targeting all types of foreign control in complex corporate structures.

A. Singling Out Specific Countries

Bills proposed in at least a dozen states (including Alabama, Arkansas, Colorado, Iowa, Florida, Georgia, Maryland, Mississippi, South Carolina, Texas, West Virginia, and Wyoming) singled out specific countries for property restrictions.

For example, Alabama enacted a law that defines a “foreign country of concern” as “China, Iran, North Korea, and Russia.”⁸⁹ Bills considered in Arkansas,⁹⁰ Georgia,⁹¹ and Texas⁹² similarly placed restrictions on citizens of these four countries. In Colorado, West Virginia, and Wyoming, proposed bills placed restrictions on citizens of China, Russia, or any country designated as a “state sponsor of terrorism.”⁹³

Florida enacted an alien land law that defined a “foreign country of concern” to mean China, Iran, North Korea, Russia, Cuba, the Venezuelan regime of Nicolás Maduro, and Syria.⁹⁴ Florida’s law is harshest, however, on citizens of China, placing more severe restrictions on them and subjecting them to stiffer penalties for violating the law.⁹⁵ A bill proposed in Arizona included the same seven countries on Florida’s list plus Saudi Arabia.⁹⁶ The Arizona bill emerged after a Saudi Arabian company made headlines for leasing Arizona public lands and pumping exorbitant amounts of groundwater to grow alfalfa for export to Saudi Arabia.⁹⁷

Many other bills singled out China alone, including bills proposed in Iowa,⁹⁸ Maryland,⁹⁹ Mississippi,¹⁰⁰ South Carolina,¹⁰¹ and Washington.¹⁰² Two Arizona bills,¹⁰³ as well as a bill proposed in Hawaii,¹⁰⁴ refer specifically to the Chinese Communist Party and its members. A Utah bill indirectly references Chinese companies by defining a “restricted foreign entity” as a company that the Secretary of Defense is required to report as a military company, which includes only Chinese military companies.¹⁰⁵ The intense focus on China across so many of these bills and laws is reminiscent of the anti-Asian sentiment that fueled alien land laws long ago. Alien land laws singling out specific countries are less likely to pass constitutional muster than more evenhanded laws.¹⁰⁶

B. Targeting Foreign Adversaries

Prior to the most recent wave, only five states had alien land laws that restricted land ownership by citizens of foreign adversaries.¹⁰⁷ None of those laws explicitly referred to foreign adversaries, much less attempted to name them. Instead, they benignly extended equal property rights to “alien friends” (New Jersey),¹⁰⁸ “[a]liens who are subjects of governments at peace with the United States and this state” (Georgia),¹⁰⁹ or any alien who is “not an enemy” (Kentucky, Maryland, and Virginia).¹¹⁰

In 2023, however, numerous state legislatures considered or passed laws restricting property ownership rights of citizens and companies of countries designated by the federal government as hostile to the U.S. or its values in some way. These bills and laws use various federal lists that were created for completely different purposes.

Laws enacted in Louisiana,¹¹¹ North Carolina,¹¹² and Virginia,¹¹³ as well as bills proposed in Kansas,¹¹⁴ Montana,¹¹⁵ Ohio,¹¹⁶ South Carolina,¹¹⁷ and Wisconsin,¹¹⁸ refer to the Secretary of Commerce’s designation of certain countries as “foreign adversaries” in the Code of Federal Regulations.¹¹⁹ This designation is based on the Secretary’s determination that a foreign government or foreign nongovernment person has “engaged in a long-term pattern or serious instances of conduct significantly adverse to the national security of the United States or security and safety of United States persons.”¹²⁰ Currently, this designation applies to six countries: China (including Hong Kong), Cuba, Iran, North Korea, Russia, and “Venezuelan politician Nicolás Maduro (Maduro Regime).”¹²¹

The Ohio bill and Louisiana law restrict not only “foreign adversaries” as defined by Secretary of Commerce but also the much longer list of foreign governments sanctioned by the Office of Foreign Assets Control (“OFAC”), which adds Afghanistan, Belarus, Burma, Central African Republic, Democratic Republic of Congo, Ethiopia, Iraq, Lebanon, Libya, Mali, Nicaragua, Somalia, Sudan, South Sudan, Syria, Yemen, and Zimbabwe.¹²² A law enacted in Tennessee, on the other hand, refers to citizens of foreign governments sanctioned by OFAC but does not include “foreign adversaries” designated by the Secretary of Commerce.¹²³

Other bills and laws refer to various U.S. State Department designations. For example, a bill proposed in New York¹²⁴ refers to a “foreign country of particular concern,” which currently includes twelve countries designated by the State Department: Burma, China, Cuba, Eritrea, Iran, North Korea, Nicaragua, Pakistan, Russia, Saudi Arabia, Tajikistan, and Turkmenistan. Bills proposed in Colorado, West Virginia, and Wyoming reference a completely different U.S. State Department designation—“state sponsors of terrorism”—a list that currently includes only four countries: Cuba, Iran, North Korea, and Syria.¹²⁵

States have also incorporated other federal definitions into their bills and laws. For example, the law passed in Arkansas references not only foreign countries of “particular concern” but also includes citizens or residents of countries subject to the International Traffic in Arms Regulations.¹²⁶ Meanwhile, a bill proposed in Texas referred to countries identified by the United States Director of National Intelligence as posing a risk to the national security of the United States in each of the three most recent Annual Threat Assessments of the U.S. Intelligence Community.¹²⁷ At least one law, enacted in Indiana, does not refer to federal definitions at all and instead allows the governor to designate certain countries as a threat to critical infrastructure.¹²⁸

A few of the proposed bills simply make vague references to “hostile” countries without providing a clear definition of the term. For instance, a Mississippi bill restricts ownership by “citizens of a country that is hostile to the interests of the United States or a country that is a known violator of human rights,” without explaining how such countries should be identified.¹²⁹ Similarly, a Hawaii bill that restricts land ownership by members of the Chinese Communist Party also refers to “other hostile foreign influence,” providing only a vague definition of this term.¹³⁰

C. Proximity to Military Installations and Critical Infrastructure

Additionally, many of the recent bills and laws limit landownership near military installations or other critical infrastructure. Considerable variation exists among the bills regarding what types of facilities are included under these terms as well as what constitutes an acceptable distance from them.

For example, a bill proposed in California prohibits foreign actors from owning or leasing land within fifty miles of a U.S. military base or California National Guard Base.¹³¹ A bill proposed in Louisiana restricts foreign ownership of “immovable property located within [fifty] miles of any federal or state military land, . . . weather station[], . . . or any facility operated by the Civil Air Patrol.”¹³² A bill proposed in Mississippi prohibits nonresident aliens from owning land within fifty miles of a military installation under the jurisdiction of the Department of Defense, the U.S. Coast Guard, or the Mississippi National Guard.¹³³ A South Carolina bill prohibits companies owned by China or the Chinese Communist Party, or whose principal place of business is in China, from controlling any land or real estate “within fifty miles of a state or federal military base or installation for the purpose of installing or erecting any type of telecommunications or broadcasting tower.”¹³⁴

Bills proposed elsewhere specify shorter distances from military installations. For example, a Georgia bill prohibits nonresident aliens from possessing any land within twenty-five miles of any military base, military installation, or military airport.¹³⁵ A North Carolina bill prohibits adversarial foreign governments from purchasing or holding land within twenty-five miles of a military base or airport.¹³⁶ The law enacted in Florida generally prohibits foreign land ownership within ten miles of a military installation or critical infrastructure facility.¹³⁷ Florida’s choice of ten miles is particularly interesting given that the legislative history indicates that a major concern was a Chinese company’s purchase of land located twelve miles from an air force base in North Dakota.¹³⁸ Meanwhile, a bill proposed in Hawaii considered just two miles from federal land or critical infrastructure to be a safe distance.¹³⁹

D. Harsh Penalties

Criminal penalties and prosecutions for violations of alien land laws are not new. In California and Arizona, such criminal prosecutions were common during the 1920s and 1930s, but those laws were subsequently repealed.¹⁴⁰ Penalties for violating a state’s alien land laws have generally been civil. Forfeiture of the property or sale at auction with proceeds escheating to the state were commonly specified as penalties in state laws. Under some laws, such as Wisconsin’s, a civil fine could be imposed, ranging from $500 to $5,000.¹⁴¹ Criminal penalties existed but were rare.¹⁴²

In the most recent wave of bills, criminal penalties have gained popularity, and civil fines are steeper. Additionally, some of the new bills and laws impose penalties on the sellers as well as the buyers. For example, the alien land law enacted in Arkansas makes a violation a felony punishable by two years in jail and a $15,000 fine.¹⁴³ Being a “resident alien” is mentioned as an “affirmative defense” to the charge.¹⁴⁴ Florida has also made it a criminal offense to violate its new law, which imposes harsher criminal consequences on Chinese purchasers of land than purchasers of other nationalities.¹⁴⁵ Violators who are domiciled in China may be charged with a third-degree felony, punishable by up to five years in jail and a $5,000 fine, while violators domiciled in the other countries named in Florida’s law may be charged with only a second-degree misdemeanor, punishable by sixty days in jail and a $500 fine.¹⁴⁶ This disparity extends to sellers. Selling real property to individuals or companies domiciled in China is a first-degree misdemeanor, punishable by one year in prison and a $1,000 fine, while selling property to individuals or companies domiciled in other countries is only a second-degree misdemeanor.¹⁴⁷

E. Targeting Corporations

Finally, the current wave of alien land laws targets all forms of foreign control in complex corporate structures. The laws restrict not only foreign corporations but also companies incorporated in the U.S. if they are controlled by noncitizens who would not be allowed to purchase the real estate themselves. The expansive language used in some of these laws reflects an attempt to close the loopholes in previous laws that allowed foreigners to acquire land simply by channeling their investments through the veil of a U.S. corporation. This was one of the main drivers behind the recent alien land law passed in Oklahoma, which specified that “[n]o alien or any person who is not a citizen of the United States shall acquire title to or own land in this state either directly or indirectly through a business entity or trust.” ¹⁴⁸

Similarly, a Tennessee bill defined a “foreign business” as “a corporation incorporated under the laws of a foreign country, or a business entity whether or not incorporated, in which a majority interest is owned directly or indirectly by nonresident aliens.”¹⁴⁹ The bill further explained, “Legal entities, including, but not limited to, trusts, holding companies, multiple corporations, and other business arrangements, do not affect the determination of ownership or control of a foreign business.”¹⁵⁰ But this bill still has a major loophole—its definition of a foreign business is limited to owning a majority interest and does not address control. Nonresident aliens could control a corporation based on voting power, even if they do not own a majority of the stock.¹⁵¹

Many other bills closed that loophole. A Washington bill, for example, prohibited acquisition of agricultural land by a foreign-controlled enterprise and defined a controlling interest to mean “possession of more than [fifty] percent of the ownership interests in an entity, or an ownership interest of [fifty] percent or less if the persons holding such interest actually direct the business and affairs of the entity without the consent of any other party.”¹⁵² A law enacted in North Dakota adopts a nearly identical definition.¹⁵³

While the definitions in the new bills and laws vary and are not perfect, they clearly seek to capture all kinds of businesses in which noncitizens play a decisive role. Of course, if a corporation is forty-nine percent owned by U.S. citizens and fifty-one percent owned by noncitizens, the U.S. citizen owners are also likely to suffer financial setbacks as a result of such laws.

III. ARE ALIEN LAND LAWS LEGAL?

Commentators have taken different perspectives on the legality of alien land laws in the past.¹⁵⁴ Some have argued that alien land laws would violate the Equal Protection Clause if they singled out specific countries.¹⁵⁵ Others contend that only restrictions on lawful permanent residents would raise equal protection concerns, and even those may be permissible.¹⁵⁶ Preemption concerns and Dormant Commerce Clause concerns have also been raised.¹⁵⁷ Because of significant variations among the laws, it is difficult to analyze these legal issues for the laws as a whole. Nevertheless, this Part attempts to parse some of the legal challenges that the new wave of alien land laws may face.

A. Statutory Violations

Alien land laws may conflict with federal statutes that prohibit discrimination such as the Fair Housing Act (“FHA”)¹⁵⁸ and the Civil Rights Acts of 1866¹⁵⁹ and 1870.¹⁶⁰

1. The Fair Housing Act

The FHA, enacted as part of the Civil Rights Act of 1968, seeks to prohibit unlawful discrimination by landlords. Under the FHA, it is discriminatory “[t]o refuse to sell or rent after the making of a bona fide offer, or to refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, sex, familial status, or national origin.”¹⁶¹ Although alienage is not specifically mentioned, the U.S. Department of Housing and Urban Development (“HUD”) has stated that “[a] requirement involving citizenship or immigration status will violate the [FHA] when it has the purpose or [unjustified] effect of discriminating on the basis of national origin.”¹⁶² Private parties would be violating the FHA if they comply with state laws that restrict who can buy or lease real estate based on national origin. States may enhance the protections of the FHA but cannot reduce them. Section 816 of the FHA declares invalid any state law that requires or permits any action that would be a discriminatory housing practice under the FHA.¹⁶³

One aspect of the FHA that makes the inquiry different from an equal protection claim is that claimants do not need to prove discriminatory intent. A facially neutral law may violate the FHA if it has “discriminatory effects.”¹⁶⁴ This is useful in challenging a law like Florida’s, which may be perceived as discriminating based on domicile rather than national origin. By prohibiting sales of real estate to individuals and companies domiciled in China, Florida’s law clearly has discriminatory effects related to national origin: China has over one billion inhabitants, of whom only .05% are not Chinese.¹⁶⁵ Similarly, other countries identified as “foreign adversaries” under Florida’s law have a very small percentage of foreigners. Less than 0.1% of Cuba’s population are immigrants, for instance.¹⁶⁶

A law that has a discriminatory effect on a protected class is unlawful if it is not necessary to achieve a substantial, legitimate, nondiscriminatory interest, or if a less discriminatory alternative could serve that interest.¹⁶⁷ As discussed further under equal protection below, alien land laws are not necessary to achieve the asserted interests, and less discriminatory alternatives are, in fact, available.

An important limitation of the FHA, however, is that it only applies to “dwellings,” that is, to real estate capable of being used as a residence.¹⁶⁸ Thus, while broadly written alien land laws that restrict real estate (or real property in general) remain vulnerable to FHA challenges,¹⁶⁹ those that restrict only agricultural land cannot be challenged under the Fair Housing Act.¹⁷⁰ The Civil Rights Acts of 1866 and 1870 may help fill this gap, although, as explained below, these laws have their own limitations.

2. Civil Rights Acts of 1866 and 1870

The Civil Rights Act of 1866 provided that “citizens . . . shall have the same right, in every State and Territory in the United States, to make and enforce contracts . . . as is enjoyed by white citizens.”¹⁷¹ The Civil Rights Act of 1870 made a significant revision by changing “citizens” to “persons.”¹⁷² This language is now codified in 42 U.S.C. § 1981 (“section 1981”). The revised language made it clear that noncitizens, as well as citizens, are protected by the law’s equality mandate.¹⁷³ Courts have also construed section 1981 as prohibiting discrimination based on alienage.¹⁷⁴ Alien land laws may therefore run afoul of section 1981.¹⁷⁵

One limitation of section 1981 is that it applies only to individuals “within the jurisdiction of the United States.” While this phrase includes noncitizens in the United States,¹⁷⁶ it would likely exclude noncitizens residing abroad, the group most affected by alien land laws. Corporations headquartered abroad that are “foreign adversaries” under Montana’s law therefore may not be able to bring challenges under section 1981, although if they have U.S.-based subsidiaries, such challenges may still be possible. Other states, like Indiana, have broad definitions of “qualified entities.”¹⁷⁷ Many alien land laws tackle corporations controlled by foreigners. Any qualified entities based in the U.S. should be able to bring section 1981 challenges, even if they are owned or controlled by citizens of Iran, North Korea, or China.

Another potential limitation of section 1981 is that a separate provision of the Civil Rights Act of 1866, now codified at 42 U.S.C. § 1982 (“section 1982”), specifically addresses property and extends equal protection only to U.S. citizens.¹⁷⁸ Specifically, section 1982 provides: “All citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property.”¹⁷⁹ That language was not altered by the Civil Rights Act of 1870. Courts could therefore interpret section 1982 as a limited exception to section 1981’s more general rule about contracts, excluding contracts pertaining to property from the alienage equality principle found in section 1981.

Even under this interpretation, however, section 1981 is still relevant, since some of the recently enacted laws not only prohibit buying and selling real property, but also prohibit forming other types of contracts. For example, Indiana’s, Montana’s, and Texas’s new alien land laws prohibit certain foreign entities from countries like China from entering into agreements regarding critical infrastructure (energy grid, water treatment plants, and so on).¹⁸⁰

Additionally, one could argue that section 1982 prohibits the restrictions that alien land laws place on U.S. citizen sellers and landlords, as well as U.S. citizen-owned or controlled realty and title companies. From the perspective of U.S. citizens who want to sell properties, the restrictions imposed by states are restraints on alienation.¹⁸¹ The laws shrink their market, and if the claims about Chinese investors flooding the market and paying exorbitant prices are true,¹⁸² then real estate owners and companies who cater to this population will lose a profitable share of potential buyers. One complication with this argument is that U.S. citizen sellers are not necessarily being treated differently from other “white citizens” under the language of section 1982. For the argument to work, the focus would likely have to be on non-white U.S. citizen sellers, for example, U.S. citizen sellers of Chinese descent whose clientele potentially include a substantial number of Chinese citizens or companies domiciled in China. These U.S. citizen sellers of Chinese descent could argue that they are being deprived of the same opportunities to sell real property that are enjoyed by white citizens who do not have clientele in China.

Another possible legal hurdle is that a disparate impact claim under section 1981 or section 1982 requires showing that the disparate impact is traceable to a discriminatory purpose.¹⁸³ This is more limiting than a disparate impact claim under the FHA. Nevertheless, the legislative history and rhetoric surrounding the passage of some of the laws may help demonstrate a discriminatory purpose. State legislators and executive officials discussing alien land laws have used inflammatory rhetoric coated with national security concerns. Feeding on the anti-Asian sentiment fueled by dubious theories about the origin of COVID-19 and compounded by economic fears concerning China’s influence, their statements are reminiscent of the language used in the era of the “Yellow Peril.”¹⁸⁴ Although alien land laws may seem somewhat removed from the original purpose of the Civil Rights Acts, which was to prevent discrimination against African Americans in the wake of the Civil War, the rhetoric surrounding these laws reflects a form of racial discrimination.

B. Equal Protection Concerns

The Equal Protection Clause applies to all persons within the United States, including all noncitizens.¹⁸⁵ But noncitizens abroad generally are not regarded as having a right to equal protection,¹⁸⁶ although open questions about extraterritorial rights certainly remain.¹⁸⁷ This may be a threshold hurdle for bringing an equal protection challenge, since many of the alien land laws apply only to “nonresident aliens” and define “resident aliens” as noncitizens living anywhere in the U.S.¹⁸⁸ If an alien land law restricts only foreigners abroad, an equal protection challenge would likely need to be brought by the individuals and companies based in the U.S. that are prohibited from selling or leasing real property to foreigners abroad.¹⁸⁹

Another major challenge in bringing an equal protection claim will be the century-old Supreme Court precedents in Terrace and Porterfield upholding alien land laws, which have never been overruled.¹⁹⁰ Of course, in the 1920s, equal protection jurisprudence was quite different than it is today. Segregation, Jim Crow, and racially restrictive covenants were all legal.¹⁹¹ Levels of judicial scrutiny were not introduced until 1938, in the famous footnote four of United States v. Carolene Products, in which Justice Stone mentioned certain circumstances that may call for a “more searching judicial inquiry,” including cases involving “prejudice against discrete and insular minorities.”¹⁹²

In 1948, when the Supreme Court applied this type of searching judicial inquiry in Oyama, it invalidated as racially discriminatory a part of California’s alien land law that deprived U.S. citizens of Japanese descent of property rights.¹⁹³ But the Court stopped short of invalidating the law altogether.¹⁹⁴ That same year, in Takahashi, when the Court struck down a California law that prohibited those “ineligible for citizenship” from obtaining fishing licenses, it rejected California’s reliance on the Terrace and Porterfield cases, finding them not controlling even “[a]ssuming the[ir] continued validity.”¹⁹⁵

The modern strict scrutiny test did not emerge until the 1960s.¹⁹⁶ And it was not until 1971 that the Supreme Court applied strict scrutiny to alienage classifications.¹⁹⁷ In a watershed decision, Graham v. Richardson, the Court found that “[a]liens as a class are a prime example of a ‘discrete and insular’ minority . . . for whom such heightened judicial solicitude is appropriate.”¹⁹⁸ Applying this new, rigorous standard of review, the Court struck down Arizona and Pennsylvania statutes that favored citizens over noncitizens in welfare benefits.¹⁹⁹ Richardson rejected the states’ argument that the restrictions were justified by “a State’s ‘special public interest’ in favoring its own citizens over aliens in the distribution of limited resources such as welfare benefits.”²⁰⁰ The Court also flatly rejected “fiscal integrity” as a compelling justification, stating that “aliens lawfully within this country have a right to enter and abide in any State in the Union ‘on an equality of legal privileges with all citizens under non-discriminatory laws.’ ”²⁰¹

The Supreme Court continued to apply strict scrutiny to strike down state laws that discriminated against noncitizens in employment. The Court invalidated a New York law that permitted only U.S. citizens to be eligible for state employment,²⁰² a Connecticut law that permitted only U.S. citizens to become lawyers,²⁰³ and a Texas law that permitted only U.S. citizens to be notary publics.²⁰⁴

However, the Court has also recognized an exception to strict scrutiny in cases where alienage classifications are related to a state’s political function.²⁰⁵ In Bernal v. Fainter, the Court described this as a “narrow exception” that “applies to laws that exclude aliens from positions intimately related to the process of democratic self-government.”²⁰⁶ Under the political function exception, the Court has applied rational basis review to uphold laws that require police officers,²⁰⁷ probation officers,²⁰⁸ and public school teachers²⁰⁹ to be U.S. citizens.

If strict scrutiny applies to an alien land law, then the law must be narrowly tailored to a compelling government interest, a test that is generally difficult to pass. If rational basis applies, the law must merely be related to a legitimate government interest. Determining which level of scrutiny applies is therefore a critical threshold question in assessing the likelihood of prevailing with an equal protection claim.

1. Does Strict Scrutiny Apply?

There are at least three important legal questions that must be answered in order to determine if alien land laws are subject to strict scrutiny. First, do all alienage classifications receive strict scrutiny or only those affecting lawful permanent residents? Second, does the “political function” exception to strict scrutiny for alienage classifications apply to alien land laws? Third, do restrictions that turn on being domiciled (or headquartered, for a corporation) in particular countries discriminate based on national origin?

i. Do All Alienage Classifications Receive Strict Scrutiny, or Only Classifications Affecting Lawful Permanent Residents?

The Supreme Court’s decision in Richardson broadly stated that “[a]liens as a class are a prime example of a ‘discrete and insular’ minority” and that “classifications based on alienage, like those based on nationality or race, are inherently suspect and subject to close judicial scrutiny.”²¹⁰ This language does not distinguish between legal permanent residents and other noncitizens. Subsequently, in Nyquist v. Mauclet, the Supreme Court also applied strict scrutiny in striking down a New York statute that barred a heterogeneous group of noncitizens (not just permanent residents) from state financial aid for higher education, stressing that “[t]he important points are that [the statute] is directed at aliens and that only aliens are harmed by it.”²¹¹

While the Court has never limited the application of strict scrutiny to lawful permanent residents, its use of the term “resident aliens” has created confusion. The term “resident alien” can easily be misconstrued as shorthand for a permanent resident, although it simply refers to an alien residing in the United States.²¹² Asylum applicants, refugees, and noncitizens with a variety of temporary visas, among others, are permitted to reside in the United States, even though they are not lawful permanent residents.

In Toll v. Moreno, the Supreme Court had an opportunity to clarify what level of scrutiny applies to classifications involving temporary immigrants (technically called “nonimmigrants”) when evaluating a University of Maryland policy that prohibited individuals with G-4 visas from receiving in-state tuition.²¹³ But the Court ultimately found that the university policy was preempted and declined to address the equal protection claim.²¹⁴ A circuit split has since emerged regarding what level of scrutiny applies to state classifications involving temporary immigrants.

The Fifth Circuit has held that temporary immigrants are not a suspect class, applying rational basis review in upholding Louisiana laws that prohibit temporary immigrants from taking the bar exam²¹⁵ and obtaining a nursing license.²¹⁶ In explaining why classifications affecting temporary immigrants receive rational basis review, the Fifth Circuit stressed the ways that temporary immigrants are different from permanent residents, noting that “nonimmigrant aliens may not serve in the U.S. military, are subject to strict employment restrictions, incur differential tax treatment, and may be denied federal welfare benefits.”²¹⁷ The Sixth Circuit followed the Fifth Circuit’s rationale, applying rational basis review in upholding a Tennessee statute that conditions issuance of a driver’s license on being a U.S. citizen or permanent resident.²¹⁸

The Second Circuit, on the other hand, has held that temporary immigrants are a suspect class and applied strict scrutiny in striking down a New York statute that prohibited them from a obtaining a pharmacist’s license.²¹⁹ The court refused to create an exception to strict scrutiny for temporary immigrants that the Supreme Court never recognized.²²⁰ Additionally, the court reasoned that the factual similarities between U.S. citizens and permanent residents recognized in Richardson were never intended to be a test for triggering strict scrutiny.²²¹ The court correctly recognized that Richardson’s recognition of aliens as a “discrete and insular minority” was premised on their minority status within the community, not their similarity to citizens.

The only class of noncitizens that the Supreme Court has ever treated differently in terms of the level of scrutiny that applies are undocumented individuals. But even in Plyler v. Doe, in which the Court refused to recognize undocumented children as a suspect class, the Court struck down the Texas statute that denied them a basic education.²²² There, the Court applied a form of intermediate scrutiny by requiring Texas to show that it had a “substantial” interest in excluding undocumented children from public schools.²²³ This heightened scrutiny may have been unique to a case that stressed the importance of education and the innocence of children.²²⁴ Still, if undocumented children received heightened scrutiny, it is difficult to argue that lawfully present noncitizens should receive rational basis review simply because they are not permanent residents.²²⁵

ii. Does the “Political Functions” Exception to Strict Scrutiny for State Alienage Classifications Extend to Ownership of Real Property?

Courts have not yet addressed whether state alien land laws fall under the “political functions” exception to strict scrutiny. If the exception applies, a state’s alienage classifications would receive only rational basis review. In Shen v. Simpson, the case challenging Florida’s 2023 alien land law, Florida argued that the political function exception applies, triggering only rational basis review.²²⁶ Thus far, however, the Supreme Court has only applied the political functions exception to certain state jobs.

The Supreme Court set forth a two-part test for determining “whether a restriction based on alienage fits within the narrow political-function exception.”²²⁷ First, a court examines the specificity of the classification: “[A] classification that is substantially overinclusive or underinclusive tends to undercut the governmental claim that the classification serves legitimate political ends.”²²⁸ As explained further below in the application of the strict scrutiny test, alien land laws are substantially over- and under-inclusive. That alone undercuts the relevance of the political function exception.

Additionally, the second part of the test provides that:

[E]ven if the classification is sufficiently tailored, it may be applied in the particular case only to “persons holding state elective or important nonelective executive, legislative, and judicial positions,” those officers who “participate directly in the formulation, execution, or review of broad public policy” and hence “perform functions that go to the heart of representative government.”²²⁹

The plain language of the second prong indicates that the exception applies only to certain public positions. Owning real property is not a public position. Nor does being a property owner require any involvement in the formulation, execution, or review of public policies. Restricting property ownership is different from “limit[ing] the right to govern to those who are full-fledged members of the political community.”²³⁰

One way to view the issue is to consider whether real property ownership is more closely related to Supreme Court cases protecting noncitizens’ rights to equal economic opportunity,²³¹ or to cases that allow states to limit certain public positions to U.S. citizens.²³² Land is often connected to economic opportunity—agricultural land provides a livelihood through farming and raising livestock; commercial property supports businesses that provide livelihoods; and even residential property is often necessary to work in an area. In fact, in cases striking down state laws that discriminated against noncitizens in employment, the Supreme Court has connected the right to work to the right to “entrance and abode,” stating “they cannot live where they cannot work.”²³³

Furthermore, real property ownership has little in common with the public positions that have fallen under the exception to strict scrutiny. Landowners are not “clothed with authority to exercise an almost infinite variety of discretionary powers,”²³⁴ they do not fulfill “a basic governmental obligation,”²³⁵ and they are not “in a position of direct authority over other individuals.”²³⁶ Under this analysis, if any type of restriction on real property qualifies for the political functions exception, it would only be ownership of state land.

However, if the political functions exception is more broadly construed as encompassing “the process of democratic self-determination” and “the community’s process of political self-definition,” courts may consider land ownership to be relevant.²³⁷ Land can be seen as providing “the basis for political organization.”²³⁸ States’ historical restrictions on foreign land ownership, going back centuries, could also be viewed as reflecting an understanding that such restrictions are somehow inherent to state sovereignty and self-determination.

But choosing who gets to live in a state has not traditionally been part of a state’s right to self-definition. Due to the constitutional right to migrate, the Supreme Court has stressed that “[s]tates . . . do not have any right to select their citizens.”²³⁹ A state law aimed at deterring a particular class of people from migrating to the state is impermissible whether that class consists of welfare applicants, as in Richardson, Japanese immigrants, as in Takahashi, or other noncitizens. Similarly, the Supreme Court has found that a “[s]tate’s objective of reducing population turnover” would “encounter[] insurmountable constitutional difficulties.”²⁴⁰ The political functions exception allows a state to “limit the right to govern to those who are full-fledged members of the political community,”²⁴¹ but it has never allowed a state to limit who lives in the community.

In short, the political functions exception should not apply to alien land laws, and strict scrutiny would be the proper standard of review for their alienage classification.

iii. Do Restrictions Discriminate Based on National Origin if They Draw Distinctions Based on Where a Person or Entity Is Domiciled or Headquartered?

National origin discrimination is distinct from discrimination based on alienage. While alienage discrimination refers to distinctions between citizens and noncitizens,²⁴² national origin discrimination is broadly understood to include discrimination based on an individual’s place of origin, or their ancestors’ place of origin.²⁴³ Laws that place restrictions on citizens or corporations of specific countries ought to trigger strict scrutiny based on national origin.

States may argue, however, that their laws do not discriminate based on national origin but instead draw distinctions based on place of “residence” or “domicile.” For example, Florida’s law restricts only noncitizens who are “domiciled” in certain foreign countries, rather than restricting citizens of those countries outright.²⁴⁴ A federal district court found that the Florida law does not discriminate based on Chinese national origin because Chinese individuals domiciled in the United States are not restricted; only individuals domiciled in China are restricted, and they need not be Chinese.²⁴⁵ Similarly, Montana’s law applies to corporations that are “domiciled or headquartered” in a country identified as a “foreign adversary.”²⁴⁶

A law like Florida’s would clearly have a disparate impact on individuals of Chinese national origin, since over 99% of people living in China are Chinese. But equal protection principles require a showing of intentional discrimination; classifications that merely result in a disparate impact are not subject to strict scrutiny.²⁴⁷ In Village of Arlington Heights v. Metropolitan Housing Development Corp., however, the Court found that discriminatory intent could be evidenced by factors that include “disproportionate impact, the historical background of the challenged decision, the specific antecedent events, departures from normal procedures, and contemporary statements of the decisionmakers.”²⁴⁸ These factors must be assessed cumulatively.²⁴⁹ In Shen, the Florida case, the clearly disproportionate impact on Chinese individuals, along with the legislative history, would support a finding of discriminatory intent under Arlington Heights.

Because the Arlington Heights factors are non-exhaustive, some appellate courts have mentioned other considerations. For example, a “consistent pattern” of actions of decisionmakers that have a much greater harm on minorities than on non-minorities could help establish discriminatory intent.²⁵⁰ In a state like Florida or Texas, where the governors have taken numerous actions to try to prevent immigrants from coming to the state, this may be a relevant consideration.²⁵¹ Courts have also found that applying different, less favorable processes or substantive standards to requests by members of a suspect class may raise an inference of discriminatory intent. Some alien land laws impose special procedures for buyers from certain countries, such as requiring buyers to sign affidavits attesting that they are not principals of China and to register existing properties with the state.²⁵² These types of procedures could further help establish discriminatory intent.²⁵³

2. Analyzing Alien Land Laws Under Strict Scrutiny

In order to survive strict scrutiny, a law must be narrowly tailored to serve a compelling government interest. When strict scrutiny is applied, the government “must show that it cannot achieve its objective through any less discriminatory alternative.”²⁵⁴ The main reasons offered for the new wave of alien land laws are national security, food security, and preventing absentee landownership. As explained below, even assuming these are all compelling government interests, alien land laws are unlikely to survive strict scrutiny because they are not narrowly tailored to achieve these objectives. There are also less restrictive alternatives available.

i. National Security

In explaining the need for Alabama’s newly enacted alien land law, Governor Ivey said, “Across the United States, we have seen alarming instances of foreign entities purchasing large tracts of land, which could have severe consequences for our country’s national defense and economy, if no action is taken.” ²⁵⁵ As discussed above, many of the proposed and enacted laws forbid foreign ownership of land within a certain distance of military installations or critical infrastructure. Such restrictions are highly unlikely to prevent espionage or other national security attacks. The Chinese balloon that hovered over Montana did not need to be launched from land near a military base.²⁵⁶ Neither do drones or cyberattacks gathering U.S. data.²⁵⁷

Furthermore, the “safe” distances from military installations or critical infrastructure are arbitrary in this new wave of alien land laws. As noted above, these distances range from two to fifty miles. The best illustration of this arbitrariness is Florida’s law, which bans ownership by “foreign principals” within ten miles of military installations even though the legislation was triggered by a Chinese company’s purchase of land twelve miles from a military based in North Dakota.²⁵⁸

Nationality-based restrictions on ownership of real property are also easily circumvented. Straw men can be used to purchase the land. A Chinese tycoon can easily have someone purchase it for him, as Mr. Sun did in Texas.²⁵⁹ As commentators have previously noted, alien land laws do not really pose an impediment to acquiring real property.²⁶⁰

A less restrictive alternative would be for states to establish or expand existing reporting requirements for foreign investment in land. Several states have already implemented reporting requirements for foreign investments in agricultural land.²⁶¹ Extending the reporting requirements to all real estate and subjecting those transactions to a review process to identify risky transactions would be less restrictive and potentially more effective than a blanket ban. Once the state has information about a potential transaction, it can decide if the transaction can go forward or if it involves too many risks from a national security perspective. This process imposes less of a restriction on individuals who want to sell their land and is less likely to be perceived as aggressive by foreign countries. It is an approach similar to the one used at the federal level by the Committee on Foreign Investment in the United States (“CFIUS”). However, this approach, like the current one banning transactions, may be preempted by the Foreign Investment Risk Review Modernization Act of 2018 (“FIRRMA”).²⁶² Another way to discourage transactions involving noncitizens abroad is taxation. A tax would increase the cost of real estate transactions, ensuring that only those bringing a large benefit move forward. Taxation, though, could violate the Dormant Foreign Commerce Clause.²⁶³

In short, banning land ownership within certain distances of military installations or critical infrastructure is not going to bring large gains in national security. It will, however, impose significant costs by barring potential good faith purchasers from accessing land, introducing tensions in the United States’ relationship with certain countries, and perpetuating negative sentiments towards people from countries like China.

ii. Food Security

The idea of food security has had a central role in farmland regulation for a long time.²⁶⁴ There is a fear that foreign companies will control U.S. food production and either let Americans suffer if certain products are unavailable or make them pay a higher cost by importing them. The fear is not new: for decades, foreign owners of agricultural land have been required to report to the U.S. Department of Agriculture.²⁶⁵

But this fear is misplaced. The United States has a surplus of agricultural products.²⁶⁶ Furthermore, the bills deal with land ownership as a proxy for agricultural production, but the current structure of agricultural markets may make that an inadequate proxy. Eight of the twenty largest food and beverage companies in the United States are foreign companies, but none are from the countries deemed foreign countries of concern in the new wave of alien land laws.²⁶⁷ Control of agricultural land neither results in automatic control of the food supply, nor does it lead to control of agricultural production. In Iowa, for example, where roughly all non-family corporations are prevented from owning agricultural land, large agribusinesses simply lease the land from several owners, subverting the goal of the ownership prohibition.²⁶⁸ A similar subterfuge could be used by foreign companies in response to state alien land laws.

If the concern is foreign control of agricultural land and absentee ownership, focusing on the “who” by targeting specific countries’ nationals would be a partial solution if the countries singled out were the ones that most foreign owners come from. If that were the case, then instead of banning China, Iran, North Korea, or Russia, states should ban Canada, Netherlands, Italy, the U.K. and Germany, in that order, because each of them owns far more agricultural land than China.²⁶⁹ Even a measure like Washington’s—a blanket prohibition on foreign investment in agricultural land—is not automatically going to slow down the consolidation of land and reduce land prices because domestic companies may still accumulate large amounts of natural resources.

A less restrictive alternative to address concerns about foreign control of resources is to limit the amount of these resources that foreigners can own. This approach recognizes that size matters and that small investments give foreign actors less leverage against federal, state, and local governments.²⁷⁰ Restricting the amount of land that noncitizens can own would also discourage financial investors seeking market control who need a certain scale for the investment to be profitable.

iii. Absentee Ownership

A third motivation for the new wave of alien land laws is concern over absentee ownership.²⁷¹ Absentee ownership is problematic because property is treated as an investment, and the owner generally lacks interest in what role the property could fulfill in the community,²⁷² civically and economically.²⁷³ This concern applies to both agricultural lands and dwellings. Alien land laws that distinguish between “resident aliens” and “nonresident aliens” reflect a desire to preserve property for residents. But because most state laws usually define a “resident alien” as living anywhere in the United States, limiting property ownership to resident aliens would not necessarily prevent absentee ownership. An owner of agricultural land in the Central Valley living in Shanghai is no different than an owner living in Rhode Island. Both will lack the local knowledge and the community involvement.

A more narrowly tailored alternative to address absentee ownership would be to impose a requirement of occupancy or production, or both, like the requirements for establishing a homestead.²⁷⁴ Alternatively, a state could tax land that is not in production at a higher rate, no matter where the owner resides.

A few alien land laws do impose stricter residency requirements to prevent absentee ownership.²⁷⁵ For example, Oklahoma’s newly enacted law has an exception for noncitizens who “take up bona fide residence in this state,” but if they leave the state, they must dispose of the land within five years.²⁷⁶ These requirements likely violate the Commerce Clause.

iv. Real Estate Market Prices

Although not explicitly mentioned by legislators proposing alien land laws, another motivation is fear of foreign investors driving up the prices of real estate.

In the agricultural sector, the fear is that it may displace American farmers who will not have access to land. Alabama’s Senate Bill (“S.B.”) 14 banning foreign ownership of agricultural land illustrates these concerns.²⁷⁷ Although the problem of access to farmland for small family farmers is real, the culprit is not necessarily foreigners but rather investors and consolidation.²⁷⁸ Furthermore, agribusinesses have been dominating the market.²⁷⁹ These alien land laws focus on the “who,” instead of on the “what”—in other words, they do not tackle the issue of corporate consolidation plundering natural resources.²⁸⁰

In the residential market, even if the overall Chinese investment in land is not large, it may have significant effects in certain local markets. While Chinese investment in land may drive prices up, it is necessary to consider a more nuanced picture. In some areas of the Midwest, Chinese investment has helped revitalize crisis-stricken areas, such as the Stonewater Community in a suburb of Detroit.²⁸¹ Many municipalities have welcomed the new developments targeting Chinese buyers. Corinth, near Dallas, readily approved new developments in its jurisdiction.²⁸² The situation may be different in Manhattan or San Francisco and other big cities where Chinese investments may be driving up home values.²⁸³ However, targeting the demand side will not solve the housing crisis because it is a supply-side problem.

The poor fit between alien land laws and their objectives, combined with the availability of less restrictive alternatives, means such laws are likely to be struck down under strict scrutiny.

3. Rational Basis Analysis

If rational basis review applies instead of strict scrutiny, then a court need only inquire if the law is rationally related to a legitimate government purpose. There is no analysis of less restrictive alternatives for rational basis review.²⁸⁴ While laws generally survive rational basis review, courts have invalidated laws motivated by animus by applying rational basis with bite, a heightened form of scrutiny. Both types of rational basis review are discussed below.

i. Regular Rational Basis Review

The poor means-end fit discussed above arguably fails not only strict scrutiny, but also rational basis review. There is simply no rational relationship between the asserted objectives and the means being used to achieve them, since the restrictions imposed will be completely ineffective in addressing the problems identified. First, the problems of access and prices of real estate are mostly supply problems, not demand. Second, the countries that are singled out in the new wave of alien land laws completely fail to reflect the nationalities of the largest foreign landowners. Third, these laws are argued as ways to ensure food security, but food security is not a problem in the United States. To the extent that food security embodies consolidation in the agricultural sector and absentee ownership, alien land laws do not solve the food security problem because the real culprits are domestic corporations and corporations from countries that are not mentioned in any of the alien land laws. Fourth, from a national security perspective, foreign adversaries who want to spy on the U.S. are likely to use methods that do not require a land base near the target.

The few cases where courts have upheld alien land laws under rational basis review are distinguishable from many of the current laws because those laws were different in scope and did not single out specific nationalities. For example, the Eighth Circuit upheld a Nebraska constitutional provision prohibiting agricultural land ownership by non-family corporations.²⁸⁵ In addition, the Wisconsin Supreme Court upheld a law that limited ownership of land by “nonresident aliens” to 640 acres.²⁸⁶ The court found the law to be rationally related to the legitimate goal of preventing absentee ownership, stating that “limiting the benefits of land ownership to those who share in the responsibilities and interests of residency is not an unreasonable exercise of legislative choice.”²⁸⁷

The fate of the new laws may be different, especially if they single out specific countries. Laws targeting citizens, corporations, and governments of China, Iran, North Korea, Russia, and other countries on various federal lists are much more ineffective (and more insidious) than the laws considered in these prior decisions, which treated all nonresident aliens equally. If the targeted countries’ citizens and corporations own little to no real property in the state, legislators cannot rationally think that prohibiting them from owning real estate will make a dent in the problems they want to tackle. Additionally, absentee ownership is already pervasive in the agricultural sector. Targeting foreign owners as a potential solution would affect only 3% of the land in the United States if all countries were restricted. Legislators are aware that there is little overlap between the problem of absentee ownership and foreign ownership.²⁸⁸ As for statutes that prohibit landownership within a certain distance of military bases or critical infrastructure, this will do nothing to prevent cyberattacks, which pose the main threat to national security, as noted above.²⁸⁹

Another reason for questioning the rationality of the new wave of alien land laws is that availability bias appears to play a major role in legislators’ decisions. Availability bias is the human tendency to use information that comes to mind quickly and easily when making decisions.²⁹⁰ It is an unconscious mental shortcut that circumvents taking all evidence into consideration. Because a few incidents that involved foreign investors made national news, the new wave of alien land laws was spurred.

In addition to the wind farm project planned by Mr. Sun in Texas, there were two other prominent incidents. One involved a Saudi-owned company called Fondomonte that was leasing public land in Arizona and draining the groundwater supply to grow alfalfa for export back to Saudi Arabia, where alfalfa farming was prohibited due to water scarcity. The company paid relatively little to lease the land in Arizona and got the water for free, while Americans in the surrounding area paid extremely high costs for water.

The other case involved a Chinese food manufacturer that tried to purchase 300 acres of agricultural land in North Dakota located twelve miles from the Grand Forks Air Force Base.²⁹¹ The federal government’s CFIUS reviewed this case and determined that it did not have jurisdiction over the transaction because the Grand Forks Air Force Base was not on its list of military installations.²⁹² This led people to believe that the federal government’s process was inadequate and that states needed to take more action. The Grand Forks incident was relied on not only by legislators in North Dakota, but also by other states including Florida.²⁹³ Yet, as previously noted, the law that Florida ultimately passed would not have stopped such an investment, since it prohibited Chinese foreign investment within ten miles of military installations. The arbitrariness and ineffectiveness of the laws suggest that decisions were driven by implicit biases rather than carefully studied facts. Worse yet, they may have been motivated by animus, as discussed below.

ii. Rational Basis with Bite

To the extent that recent alien land laws are motivated by animus toward China or another country, courts may apply “second order” rational review, also known as rational basis “with bite.”²⁹⁴ In such cases, the Supreme Court has found the government’s interest to be illegitimate because it is motivated by prejudice. The Court has considered a poor means-end fit to be a signal that an illegitimate interest may be motivating the law.²⁹⁵

Comments made by politicians around the time that the recent wave of alien land laws started being proposed certainly suggest that anti-Chinese animus played a role. For example, in 2022, a candidate who competed in the Republican primary for a Texas House seat tweeted, “China created a virus that killed hundreds of thousands of Americans.”²⁹⁶ Former President Trump also continued to call COVID-19 the “China virus” throughout 2022.²⁹⁷ Each tweet from Trump that mentioned “China” and “COVID” together resulted in an 8% increase in anti-Asian hate incidents and tweets with racial slurs.²⁹⁸

Politicians further fanned the flames of anti-Chinese animus by presenting China as a threat to the American way of life. A U.S. Representative from Indiana accused President Biden of “turning a blind eye to CCP spies abusing our visa system.”²⁹⁹ A U.S. Senator from Tennessee warned that “[t]he CCP is attempting to take over the USA across all industries—pushing spies into U.S. universities and buying U.S. farmland.”³⁰⁰ Vice President J.D. Vance, a former Senator from Ohio, analogized U.S. economic dependence on China to slavery when he was running for his Senate seat, stating: “When our farmers go bankrupt the Chinese who sell the fertilizer will happily buy up their land. This is the pathway to national slavery.”³⁰¹ The Washington Post and other outlets have also highlighted how “anti-Asian bigotry” is behind the new alien land laws targeting China.³⁰²

In City of Cleburne v. Cleburne Living Center, Inc., a classic case on rational basis with bite, the Court focused on the lack of “fit” between the language of a zoning ordinance and a town’s asserted objectives for denying a special permit to a group home for people with mental disabilities.³⁰³ The town claimed that the purpose of the ordinance and permit process was to avoid congestion and ensure safety in the event of a fire or flood, but the Court pointed out that the permit process did not apply to hospitals, nursing homes, dormitories, and other uses that could be expected to pose greater problems than a group home.³⁰⁴ This poor means-end fit supported the Court’s conclusion that the ordinance had an illegitimate purpose based on animus.

Similarly, the underinclusive nature of alien land laws that target countries with minimal investments in U.S. land, while omitting the countries with the largest investments, demonstrates a poor means-end fit if the asserted objectives are to protect food security and prevent absentee landownership. These laws also generally “grandfather” in ownership of existing properties, which some commentators have identified as another signal of underinclusiveness that can trigger heightened “rational basis” review.³⁰⁵

In sum, regardless of whether strict scrutiny or rational basis review applies, alien land laws targeting specific countries should be struck down. They are not rationally related to a legitimate government interest, much less narrowly tailored to a compelling government purpose, and they appear to be motivated, at least in part, by impermissible animus.

C. Preemption Concerns

Whether alien land laws are preempted by federal law is another important constitutional question. This Section explores whether alien land laws are preempted by federal immigration laws, the federal government’s national security and foreign affairs powers, and the CFIUS and USDA reporting regimes.

1. Immigration Preemption

The Immigration Act of 1952 established “a comprehensive federal statutory scheme for regulation of immigration and naturalization” and set “the terms and conditions of admission to the country and the subsequent treatment of aliens lawfully in the country.”³⁰⁶ Supreme Court precedents indicate that alien land laws restricting noncitizens who have already been admitted to the U.S. may be preempted by federal immigration law. In Takahashi, the Supreme Court explained that “[s]tate laws which impose discriminatory burdens upon the entrance or residence of aliens lawfully within the United States conflict with [the] federal power to regulate immigration, and have accordingly been held invalid.”³⁰⁷ Both Takahashi, and an earlier case, Truax v. Raich, struck down state laws limiting the employment of lawfully present noncitizens by reasoning that federal immigration law granted a “privilege to enter and abide in ‘any state in the Union,’ ” and that denying the right to work would be “tantamount to . . . deny[ing] them entrance and abode.”³⁰⁸

In Richardson, the Supreme Court confirmed that states may not impose an “auxiliary burden[] upon the entrance or residence of aliens” that Congress had never contemplated.³⁰⁹ Restrictions on ownership of real property impose precisely this type of auxiliary burden. Certainly, Congress never contemplated that lawful permanent residents would be encumbered by ownership restrictions. With respect to temporary immigrants (i.e., “nonimmigrants”), Congress required certain classes, such as tourists, students, and crewman, to maintain a residence abroad that they had no intent of abandoning.³¹⁰ But for other classes of temporary immigrants, Congress did not impose any such requirement.³¹¹ The Supreme Court has interpreted this silence “to mean that Congress . . . was willing to allow nonrestricted nonimmigrant aliens to adopt the United States as their domicile.”³¹² If every state could prohibit temporary immigrants from buying—or potentially even leasing—property, the doors of the United States would effectively be closed to when Congress permitted them to establish domicile here.³¹³ As a federal court in Texas recognized, “[r]estrictions on residence directly impact immigration in a way that restrictions on employment or public benefits do not.”³¹⁴

While lawfully admitted immigrants may have the strongest argument for immigration preemption, courts have also struck down state laws that discriminate against undocumented individuals in housing as preempted by federal immigration law.³¹⁵ For example, in Villas at Parkside Partners v. City of Farmers Branch, the Fifth Circuit found that immigration law preempted a local ordinance that prohibited renting to individuals who are not “lawfully present.”³¹⁶ The court reasoned that Congress contemplated that such individuals would reside in the United States until potential deportation and even required them to provide a reliable address to the federal government.³¹⁷ Additionally, the court noted that deciding whether someone is “lawfully present” requires a complex analysis and should be made only by federal immigration officials.³¹⁸ The same reasoning would support striking down Louisiana’s newly enacted alien land law, which exempts noncitizens who are “lawfully present in the United States” and would therefore require a state official to make a determination about someone’s legal status.³¹⁹

Additionally, in City of Farmers Branch, the court was concerned about the immigration classification in the local ordinance being “at odds” with a much more nuanced federal regime.³²⁰ Some of the proposed and enacted alien land laws raise similar concerns by using terms that conflict with immigration law. For example, Minnesota’s law defines a “permanent resident alien” to include not only someone who is a lawful permanent resident, but also a nonimmigrant treaty investor.³²¹ A bill proposed in West Virginia defined a “nonresident alien” as someone who is neither a U.S. citizen nor a lawful permanent resident. Under that definition, all sorts of noncitizens would be swept into the restriction, even if they live in West Virginia.

Finally, the registration and reporting requirements found in some alien land laws may be preempted by immigration law. In Hines v. Davidowitz, the Supreme Court found that immigration law preempted a Pennsylvania statute requiring adult aliens to register with the state, pay a fee, and carry an ID.³²² Likewise, in Arizona v. United States, the Court stressed that “the Federal Government has occupied the field of alien registration.”³²³ The Court explained that “[t]he federal statutory directives provide a full set of standards governing alien registration, including the punishment for noncompliance.”³²⁴ A state law that requires certain noncitizens to register their property, and penalizes them for failing to do so, is not far afield from one requiring noncitizens to register themselves, especially since the same personal information must be provided.

The arguments presented above all involve noncitizens who are in the United States. The major group omitted from this analysis of preemption by federal immigration laws are noncitizens abroad. But the other bases for preemption, discussed below, would apply to that group.

2. Foreign Affairs Preemption

The Constitution entrusts foreign affairs powers exclusively to the federal government.³²⁵ Foreign affairs preemption serves several purposes: it constrains a state’s ability to offend a foreign country, which could lead to hostilities; it promotes unity in the nation’s external affairs; and it furthers the effective exercise of foreign policy.³²⁶ Yet, as the history of alien land laws shows, states have long engaged with issues that affect foreign nationals.³²⁷

The Supreme Court has provided different versions of the test for determining whether a state law impermissibly interferes in foreign affairs. In American Insurance Ass’n v. Garamendi, which struck down California’s “Holocaust-era” insurance legislation, the Court framed the issue as whether the state law is likely to produce “more than [an] incidental effect in conflict with express foreign policy.”³²⁸ In Zschernig, the Supreme Court invalidated an Oregon probate law that permitted states courts to withhold remittances to nonresident aliens residing in Communist countries.³²⁹ Even though states traditionally have the power to regulate estates and probate, the Court found that the Oregon law “affect[ed] international relations in a persistent and subtle way.”³³⁰ There, the Court framed the test as whether the state law “impair[s] the effective exercise of the Nation’s foreign policy.”³³¹ And in Crosby v. National Foreign Trade Council, which struck down a Massachusetts law that barred state agencies from purchasing goods or services from companies doing business with Burma, the Court considered whether the state law “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of [federal policy].”³³²

Applying these cases to alien land laws, the question is whether, or to what degree, they conflict with U.S. foreign policy or pose an obstacle to the objectives of foreign policy. Do they merely have an incidental impact on foreign affairs, or is the effect more material? While the answer will likely depend on the specifics of a particular law, it is also worth considering the cumulative impact of these alien land laws on foreign affairs. If every state prohibited citizens of China from buying property, the impact on foreign relations would be far more significant than if only a few did so.

State laws that unilaterally identify certain nations as “countries of concern” or “foreign adversaries,” with no reference to a federal law, are particularly likely to raise foreign affairs preemption concerns. Like the Massachusetts law struck down in Crosby, these state laws are making a judgment about the conduct of a foreign country that is “apart from the federal government’s own announced judgment.”³³³ Even if the countries identified by the state law are currently consistent with a federal designation, federal law expressly contemplates those designations changing over time, and state laws may not keep up with them.³³⁴ Some lower courts have already expressed preemption concerns about state laws that are directed at particular nations, noting that they can be perceived as a unilateral declaration of “economic war,”³³⁵ or a “political statement” about the country.³³⁶ As one court recognized, the potential effect on international relations is greater when a state targets a specific country instead of regulating all noncitizens regardless of nationality.³³⁷

Additionally, the countries identified by name in the new wave of alien land laws are already subject to individualized sanctions by the federal government. Several Presidents have issued Executive Orders and Congress has passed laws imposing unique sanctions against China,³³⁸ Iran,³³⁹ North Korea,³⁴⁰ and Russia,³⁴¹ among other countries. Just like the sanctions against Burma discussed in Crosby, the laws addressing sanctions against these countries give the President flexible authority over what sanctions to impose and empower the President to waive any sanctions in the interest of national security. In Crosby, the Court reasoned that Congress would not have “gone to such lengths to empower the President if it had been willing to compromise his effectiveness by deference to every provision of state statute or local ordinance that might, if enforced, blunt the consequences of discretionary Presidential action.”³⁴²

Like the Massachusetts law in Crosby, alien land laws that target countries subject to federal sanctions “impos[e] a different, state system of economic pressure,” “penalize[] some private action that the federal [laws] . . . may allow, and pull[] levers of influence that the federal [law] does not reach.”³⁴³ The restrictions imposed by the alien land laws also make it impossible for the President “to restrain fully the coercive power of the national economy” by lifting or promising to lift sanctions, which leaves the President with “less to offer and less economic and diplomatic leverage as a consequence.”³⁴⁴ These state laws could also conflict with the federal sanctions scheme by flatly prohibiting financial transactions that the OFAC might permit with a license.³⁴⁵

When Congress wanted state and local governments to play a role in sanctioning a country such as Iran, Congress explicitly authorized them to do so.³⁴⁶ The 2010 Comprehensive Iran Sanctions, Accountability, and Divestment Act specified what form such state sanctions could take (divestment from companies that invest $20 million or more in Iran’s energy section), stated that such laws were not preempted, and protected due process by requiring notice and the opportunity for a hearing.³⁴⁷ Without this explicit congressional authorization, however, such sub-federal sanctions would likely be preempted by either the statute or executive action.³⁴⁸

Alien land laws that avoid naming specific countries but rely on various federal designations raise similar preemption concerns. The federal government has already determined the unique purposes and consequences of each of these designations. Adding restrictions involving real property ownership to whatever consequences the federal government has already imposed interferes with the federal scheme. For example, if the Secretary of State designates a country as “of particular concern,” Congress has authorized fifteen specific “Presidential Actions” that may be imposed on such designated countries, as well as any “commensurate action.”³⁴⁹ The President is also authorized to waive the application of any action.³⁵⁰ State laws that restrict real property ownership by citizens or entities of these “countries of particular concern” add consequences that were never contemplated by Congress and that can undermine the President’s decisions.

The variation among the countries included in each federal list underscores the deliberate decisions made by federal actors about how each country should be classified based on specific foreign policy objectives. State laws that use these classifications in a completely different context distort their purpose. This preemption argument is especially strong where the federal law constrains the context in which a particular term may be used. For example, federal regulations specify that the Secretary of Commerce’s classification of certain countries as “foreign adversaries” is “solely for the purposes of ” a particular executive order.³⁵¹

Individually and collectively, alien land laws that target specific countries, either by name or based on a federal list developed for another context, “compromise the very capacity of the President to speak for the Nation with one voice in dealing with other governments.”³⁵² As the Court explained in Crosby, “the President’s maximum power to persuade rests on his capacity to bargain for the benefits of access to the entire national economy without exception for enclaves fenced off willy-nilly by inconsistent political tactics.”³⁵³

Although the argument for foreign affairs preemptions seems strong based on these Supreme Court precedents, the U.S. Department of Justice surprisingly did not assert preemption in a Statement of Interest that it submitted in the case challenging Florida’s alien land law.³⁵⁴ Its failure to do so was noted by the district court in rejecting the plaintiffs’ preemption argument.³⁵⁵ Given the weight that courts give to the federal government’s own position on preemption, the Department of Justice’s position could prove fatal to preemption arguments in other cases as well. However, in the recent Shen case, even with the silence of the federal government, the Eleventh Circuit Court of Appeals granted a preliminary injunction based on CFIUS regulation of real estate transactions.³⁵⁶

3. The CFIUS and USDA Regimes

Concerns about foreign interests in real property are not unique to States. At the federal level, there are two avenues to rein in foreign investment: data collection on foreign interests in agricultural lands by the USDA and the review of certain transactions via CFIUS. These federal regimes may preempt state restrictions on foreign investment.

i. Reporting to USDA

The Agricultural Foreign Investment Disclosure Act of 1978 (“AFIDA”) established a framework to collect reported data on foreign ownership of agricultural land.³⁵⁷ Unfortunately, the system has not been properly implemented. Inaccuracies and underreporting have been pointed out.³⁵⁸ These critiques of the incompleteness and lack of transparency of the USDA reporting system have prompted Congress to include in the Consolidated Appropriations Act for the 2023 Fiscal Year (“FY”) a mandate to USDA to report on the impact that foreign investment has on family farms, rural communities, and the domestic food supply.³⁵⁹ The Government Accountability Office is expected to issue a report on the AFIDA and USDA reporting frameworks. There are several bills being discussed in the 2023–2024 congressional term seeking to ensure compliance with AFIDA. The Not One More Inch or Acre Act would ensure higher penalties for not complying with AFIDA.³⁶⁰ Under current law, persons who have violated AFIDA are subject to a fine of up to twenty-five percent of the foreign person’s interest in the agricultural land. This bill would make the minimum fine to be ten percent. House Resolution (“H.R.”) 1789 would require the penalty to be “at least [fifty] percent” of the market value of the land.³⁶¹ S.B. 2060 (Foreign Agricultural Restrictions to Maintain Local Agriculture and National Defense Act)³⁶² would require USDA to investigate efforts to steal agricultural knowledge and technology and to disrupt the U.S. agricultural sector. S.B. 2060 would also made the Secretary of Agriculture a member of CFIUS.

ii. CFIUS

CFIUS is a system for monitoring and, if necessary, blocking foreign investments that threaten national security.³⁶³ Established by President Ford in 1975, CFIUS is an interagency committee, chaired by the U.S. Department of Treasury.³⁶⁴ If CFIUS determines that an investment poses a threat to national security, the President can block or unwind the transaction. National security is not defined for CFIUS’s purposes, leaving it open to discretion.³⁶⁵

CFIUS originally focused only on foreign investment in U.S. businesses, without reviewing any real estate transactions. But in 2018, the Foreign Investment Risk Review Modernization Act (“FIRRMA”) expanded CFIUS and the President’s authority to review and block “certain types of real estate transactions involving the purchase or lease by, or a concession to, a foreign person.”³⁶⁶ CFIUS only has authority over real estate transactions that are in or around airports and maritime ports, or that are close to certain designated military installations. FIRRMA recognized that the President may want to consider factors such as “the relationship of [the investor’s] country with the United States” and “the adherence of the subject country to nonproliferation control regimes” in deciding whether to block a transaction.³⁶⁷

CFIUS’s jurisdiction also excludes transactions involving a single housing unit or real estate in urbanized areas.³⁶⁸ Small real estate investments are not expected to have a significant impact on national security and may not encourage large investments. Certain transactions must be reported, such as those involving a foreign government or any other transaction that CFIUS’s regulation mandates, while others fall under voluntary reporting. Real estate transactions so far have not been subject to mandatory reporting, suggesting that Congress did not consider them a national security threat. Control of critical infrastructure does trigger an investigation by CFIUS,³⁶⁹ but agriculture and food systems are not specifically identified as critical infrastructure. Bills that Congress considered but did not pass would have made that connection clear.³⁷⁰ In 2022, President Biden instructed CFIUS to consider the implications of foreign investment for food security.³⁷¹

For transactions under the purview of CFIUS, CFIUS is a ceiling and states cannot strengthen the regime by imposing additional obstacles. Hence, the provisions of new alien land laws overlapping with CFIUS are preempted because they could constitute an obstacle for federal enforcement.³⁷² Because of its limited jurisdiction, CFIUS would not have the authority to review many of the individual real estate transactions prohibited by state alien land laws. For example, as noted above, CFIUS found that it did not have jurisdiction to review a Chinese food manufacturing company’s purchase of 370 acres located twelve miles from the Grand Forks Air Force Base in North Dakota.³⁷³ That air force base was not on CFIUS’s list of designated military installations. Additionally, as a practical matter, CFIUS’s review of real estate transactions is negligible. In 2022, CFIUS reviewed 285 notices of non-real estate transactions, and only one notice of a real estate transaction.³⁷⁴ But still CFIUS may operate as a deterrent.

One could argue that Congress steered clear of ordinary real estate transactions in order to allow states to exercise their traditional control over land and property.³⁷⁵ On the other hand, Congress’s decision to include certain transactions while omitting others may reflect a carefully calibrated consideration of national security and economic interests, in which case states should not be allowed to disturb the delicate balance struck by Congress.³⁷⁶ Of course, if Congress had perceived alien land laws as conflicting with federal law (the CFIUS regime), it could have taken some action. So far, however, Congress has done nothing to impede states from implementing such laws. When Congress amended FIRRMA in 2018, at least fifteen states had alien land laws,³⁷⁷ and Congress did not indicate any intent to displace those laws in the amended Act. However, in past years, bills were introduced at the federal level that would have expanded CFIUS’s jurisdiction over real estate transactions,³⁷⁸ or outright prohibited citizens of China, Russia, North Korea, or Iran from purchasing land.³⁷⁹ While the CFIUS regime is limited, states’ unilateral actions singling out certain countries threaten the unified position that CFIUS enshrines with respect to both adversaries and allies.³⁸⁰

The Eleventh Circuit Court of Appeals in the case challenging Florida’s S.B. 264 granted a preliminary injunction in favor of two of the plaintiffs and based the “likelihood of success” on the merits on the potential preemption of S.B. 264 by the carefully crafted balance of CFIUS review under FIRRMA for real estate transactions, including those near military installations.³⁸¹

D. Dormant Commerce Clause

1. Interstate Commerce

While the Commerce Clause gives power to the federal government to regulate commerce between the states, it has also been interpreted as a limit on state action. Unlike preemption doctrine, which asks whether a state law conflicts with a federal law or whether Congress has occupied the field, the Dormant Commerce Clause prohibits state or local action that restricts interstate commerce even in the absence of congressional action. The goal of the Dormant Commerce Clause doctrine is to prevent “differential treatment of in-state and out-of-state economic interests that benefits the former and burdens the latter.”³⁸²

Some alien land laws violate the Dormant Commerce Clause by treating out-of-state actors differently than in-state actors in ways that have a negative impact on interstate commerce. The disparate treatment between in-state and out-of-state residents in North Dakota’s new law is the clearest example. North Dakota’s law disadvantages noncitizens who are either abroad or in another state. It requires noncitizens who are not permanent residents or otherwise exempted to reside in the state for ten months a year. It also exempts those who actively participate in the management of the agricultural operation, which could allow someone to comply with the restrictions without being present in the state.³⁸³ A noncitizen who stops fulfilling these requirements must dispose of the property. A foreign person who moves to another state then cannot hold land while a similarly situated foreign person in North Dakota can.

Another example is the initial version of an Oklahoma bill, which exempted “any alien who is or shall become a bona fide resident of the State of Oklahoma” from the restrictions on ownership.³⁸⁴ Such a provision explicitly treats noncitizens living in another state differently than noncitizens residing in Oklahoma, which would trigger strict scrutiny under the Dormant Commerce Clause.³⁸⁵ Oklahoma likely recognized the Dormant Commerce Clause issue, because the final version of its rule pronounced that “the requirements of this subsection shall not apply to a business entity that is engaged in regulated interstate commerce in accordance with federal law.”³⁸⁶

Courts have struck down similar restrictions on landownership that favor in-state residents. For example, in Jones v. Gale, the Eighth Circuit invalidated a Nebraska initiative that amended the state constitution to ban corporations from owning farmland, with an exception for family farm businesses in which at least one family member resided or worked on the farm.³⁸⁷ The court found that this amendment favored Nebraska residents in violation of the Dormant Commerce Clause.³⁸⁸ Alien land laws that apply restrictions without differentiating based on residence in the state are much more likely to survive a Dormant Commerce Clause analysis.

2. Foreign Commerce

Restrictions on foreign ownership of land have a more obvious effect on international trade than they do on interstate commerce because noncitizens abroad are clearly targeted.³⁸⁹ North Dakota’s law, for example, allows noncitizens to buy agricultural land only if they reside in the state, while U.S. citizens and permanent residents can own agricultural land there regardless of where they live. While no country is singled out in North Dakota’s law, those countries without a treaty of friendship with the United States will be the ones whose citizens will be most affected.³⁹⁰

The Dormant Foreign Commerce Clause operates similarly to the interstate Dormant Commerce Clause, but state laws burdening foreign commerce are subjected to more demanding scrutiny.³⁹¹ When it comes to regulating foreign commerce, the Supreme Court has stressed that state laws should not “prevent this Nation from ‘speaking with one voice.’ ”³⁹² In the seminal case Japan Line, Ltd. v. County of Los Angeles, the Court highlighted the “acute” risk of retaliation by Japan for California’s imposition of a tax rule that deviated from international practice, observing that such retaliation “would be felt by the Nation as a whole,” not just by California.³⁹³

In subsequent cases, however, the Court has acknowledged the difficulty in determining “precisely when foreign nations will be offended by [a] particular act[]” or whether they might retaliate.³⁹⁴ The Court has also upheld state taxes on foreign entities by reasoning that no coherent federal policy exists.³⁹⁵

Under the Dormant Foreign Commerce Clause, it may be hard to demonstrate a uniform federal policy on foreign land ownership, since the federal government has traditionally entered into bilateral treaties with specific countries when it wanted to override state restrictions on foreign ownership of land.³⁹⁶ Additionally, in Barclays, the Supreme Court suggested that congressional inaction indicates acquiescence to differing state laws.³⁹⁷

Alternatively, courts may rely on the Supreme Court’s position in South-Central Timber Development, Inc. v. Wunnicke,³⁹⁸ which allows states to escape scrutiny under the Dormant Commerce Clause only if they are market participants themselves. For example, states could be acting as market participants when they are regulating state public lands, or when Congress has expressly excluded a state law from Dormant Commerce Clause scrutiny.³⁹⁹ In some cases, the Court has not considered references to state power over a resource, like water, in federal laws⁴⁰⁰ or in treaties⁴⁰¹ enough to conclude that Congress has excluded the application of the Dormant Commerce Clause to states. Accordingly, acknowledgement of state power to regulate property is an inadequate basis for refusing to apply the Dormant Foreign Commerce Clause when state laws discriminate against noncitizens abroad.

CONCLUSION

While each wave of alien land laws has responded to unique historical events, xenophobia of some kind undergirds them all. The current wave is no different. The dominant narratives that have fueled such bills involve members of the Chinese Community Party buying land to either spy on U.S. military bases or to “undermine American agriculture and control the global food supply.”⁴⁰² These narratives reflect a few salient examples of Chinese investments near military bases, but they have nothing to do with most foreign investment in the U.S. This Article has argued that one of the most significant weaknesses of these new laws is the complete lack of fit between the objectives asserted and the means being used to achieve them. This lack of means-end fit, combined with the availability of less restrictive alternatives, is highly relevant to both the equal protection analysis and the Fair Housing Act disparate impact analysis.

As legal cases challenging these new laws start percolating through the court system, the Supreme Court may eventually need to decide whether it will stand by hundred-year-old precedents upholding alien land laws that were based on explicitly racist naturalization eligibility criteria—rules that prohibited Asians from becoming U.S. citizens. The time has come for those cases to be overturned. But overturning them will likely require the Court to clarify certain unanswered questions in equal protection doctrine regarding alienage discrimination, such as whether strict scrutiny applies to all classes of noncitizens and whether the political functions exception to strict scrutiny can be extended to landownership.

Courts may also decide to avoid the thorny equal protection questions by striking down alien land laws on preemption grounds instead. However, the various arguments for preemption discussed here involve their own hurdles. Preemption under immigration law would likely be limited to noncitizens who have already been admitted to the U.S. Foreign affairs preemption seems particularly promising, but the federal government’s decision not to argue preemption in the recent Florida case to date may undermine that claim. A Dormant Foreign Commerce Clause argument is also strong, but courts may still be reluctant to invalidate a law related to traditional state powers over property based on interference with commerce.

There is also a chance that Congress will enact new laws in the near future addressing foreign ownership of land, as several such bills have already been proposed.⁴⁰³ Depending on the substance of a federal law, this could either make it harder or easier to challenge property restrictions related to national origin. In FY 2024, the House proposed a bill that would “prohibit the purchase of agricultural land located in the United States by nonresident aliens, foreign businesses, or any agent, trustee, or fiduciary associated with Russia, North Korea, Iran, or the Communist Party of China.”⁴⁰⁴ If the federal government decides to pass a law like this that singles out certain countries, it would be harder to challenge than a similar state law, as rational basis review, rather than strict scrutiny, applies to alienage classifications by the federal government.⁴⁰⁵ Additionally, the Dormant Commerce Clause and preemption arguments would disappear, since they only constrain states.

The enactment of federal legislation would, however, bolster arguments that state laws are preempted. A federal law that did not single out specific countries and instead set some general limits on foreign land ownership across the board, such as a limit on the amount of U.S. land that a noncitizen abroad or foreign business may own, could have a positive effect by displacing state laws that impose much more discriminatory restrictions.

A third possibility is that Congress could explicitly embrace a cooperative approach, specifying that the newly enacted federal legislation does not prohibit states from passing their own laws on foreign ownership of real property. Because this approach would potentially permit discriminatory state laws, it would be wise for Congress to at least set some constraints regarding what types of state restrictions would be permissible to prevent a race to the bottom.

At the end of the day, states and the federal government should be wary of the harm that exclusionary laws inflict. Laws that draw distinctions based on national origin or citizenship are likely to lead to racial or ethnic profiling by realtors, lenders, and others involved in real property transactions, as well as to subordinate minorities more generally. These laws are especially apt to exacerbate discrimination against Asian Americans, Iranians, and others who are already subject to discrimination. Long ago, the Supreme Court recognized that if states were allowed to deny immigrants the right or live and work in their borders, immigrants “would be segregated in such of those States as chose to offer hospitality.”⁴⁰⁶ Alien land laws open the door to this type of segregation.

Property ownership is a crucial means of achieving both financial and social mobility; it provides access to schools, jobs, culture, and community. Restricting property rights has therefore been used as a tool throughout history to disempower certain groups, including women and racial minorities. When we deprive noncitizens of property rights, we prevent hardworking immigrants from achieving the American Dream.

98 S. Cal. L. Rev. 305

Download

Fatma Marouf*

* Professor of Law, Texas A&M University School of Law. I would like to thank the participants of the Asian American Pacific Islander (AAPI) and Middle Eastern North African (MENA) Women in the Legal Academy Workshop, hosted by CUNY School of Law, as well as the participants of the Clinical Writers’ Workshop hosted by NYU School of Law, for their valuable feedback on a draft of this piece.

Vanessa Casado Pérez†

† Professor of Law, Texas A&M University School of Law, Research Professor, Texas A&M Department of Agricultural Economics. I would like to thank the participants at the Rural West Workshop and Grayson Ford for his research assistance. We are grateful for the hard work of the Southern California Law Review editors.

After “McCleskey”

March 2024April 2024Robert L. Tsai*

In the 1987 decision, McCleskey v. Kemp, the Supreme Court rejected a black death row inmate’s argument that significant racial disparities in the administration of Georgia’s capital punishment laws violated the Fourteenth Amendment’s Equal Protection Clause. In brushing aside the most sophisticated empirical study of a state’s capital practices to date, that ruling seemingly slammed the door on structural inequality claims against the criminal justice system. Most accounts of the case end after noting the ruling’s incompatibility with more robust theories of equality and meditating on the deep sense of demoralization felt by social justice advocates. One might be forgiven for assuming that defense lawyers abandoned structural inequality claims and the use of quantitative evidence in capital cases altogether.

But that would be wrong and incomplete. For the first time, this Article recounts an unusual chapter of the fallout from the McCleskey litigation, focusing on the litigation and social activism in the wake of that decision. It draws on interviews with anti-death penalty lawyers working for or allied with the Southern Center for Human Rights in Georgia, including Stephen Bright, Ruth Friedman, Bryan Stevenson, and Clive Stafford Smith. It is also based on archival research into their case files. Drawing from these resources, this Article shows how a subset of cause lawyers in the late 1980’s and early 90’s had a remarkable reaction to that demoralizing ruling: they engaged in a distinctive form of “rebellious localism.” Instead of forsaking structural equality claims, they doubled down on them. Rather than make peace with what they believed to be an unjust ruling, they sought to subvert it. They also scrambled to formulate reliable quantitative evidence of intentional discrimination. Instead of accepting existing racial disparities in the criminal justice system, they went after prosecutors and state court judges to expose how racial minorities and poor people wound up on death row more often than their white, wealthier counterparts.

Understanding this untold episode of legal history teaches us about the limits of judicial control over constitutional lawmaking, the unanticipated consequences of trying to insulate the legal order from accountability, and the possibilities for keeping clients alive and earning pro-equality victories when political conditions are inhospitable. For those who pay attention, there are lessons that might humble the most ideologically committed judges and inspire reformers who confront challenging legal circumstances.

INTRODUCTION

We lost McCleskey because these folks don’t understand racial discrimination . . . . They’re trying to see something from too high an altitude. You’ve got to get closer to the ground.

—Bryan Stevenson¹

Stephen B. Bright² and his staff at the Southern Prisoners’ Defense Committee,³ later renamed the Southern Center for Human Rights (“SCHR”), let out a collective sigh upon learning about the U.S. Supreme Court’s ruling in McCleskey v. Kemp.⁴ For months, a team of experts led by the NAACP Legal Defense and Educational Fund had gathered and analyzed data on death penalty proceedings throughout the State of Georgia. David Baldus, a University of Iowa law professor, had run sophisticated regression analyses on over 2,000 murders since the reinstatement of capital punishment in 1976. After taking account of 230 nonracial variables, racial disparities remained. The Baldus study revealed, among other things, that defendants accused of killing white victims were 4.3 times more likely to receive a death sentence than defendants charged with killing black victims.⁵

McCleskey’s attorneys offered two theories of what was happening during the administration of capital punishment in the state, either of which would violate the Equal Protection Clause. First, they claimed that state officials were valuing white lives at the expense of black lives. Prosecutors did this by seeking the death penalty when white victims were killed but not when black victims were killed. Second, they argued that black defendants were being consistently disfavored when compared with similarly situated white defendants.⁶ The NAACP saw McCleskey’s case as a vessel for shutting down the death penalty for good, a reprise of its successful cause lawyering in Furman v. Georgia⁷ that demonstrated that capital punishment was being inflicted in arbitrary fashion.

Writing for a 5-4 Court, Justice Lewis Powell’s opinion dashed those hopes. The Court rejected McCleskey’s equality claims across the board, finding no violation of the Fourteenth Amendment. Without identifying any flaws in the study, the majority nevertheless seized the opportunity to make constitutional policies that tried to insulate the criminal justice system from future racial discrimination claims based on statistical evidence. “At most,” Justice Powell wrote, “the Baldus study indicates a discrepancy that appears to correlate with race.”⁸

Most accounts of McCleskey disparage the ruling for turning a blind eye to racism in the criminal justice system, giving plenty of attention to Justice Brennan’s dissenting view that the majority opinion exhibited “a fear of too much justice.”⁹ Anthony Lewis, writing in the pages of the New York Times, called the Court’s decision “cynical,” creating a legal standard that “would be almost impossible” to meet.¹⁰ Others said that the decision brought to a close the big-case phase of legal liberalism when advocates looked to the Supreme Court as the vehicle for social change.¹¹ For instance, Hugo Bedau said that the ruling “effectively ends the strategy in anti-death-penalty litigation that has dominated the thinking of civil-rights and civil-liberties activists for the past generation.”¹² It may be “that in the present climate of opinion no abolitionist strategy can make much headway,” he lamented.¹³

The Supreme Court’s backing away from Furman meant there was only room for incremental judicial solutions to problems with death penalty administration rather than large-scale court-led reforms. Centrists and conservatives joined forces to permit executions so long as state law guided a jury’s discretion as to whether to impose a death sentence and a defendant was allowed the opportunity to introduce all relevant evidence bearing on the sentencing decision.¹⁴ And in the wake of McCleskey, defendants were left with the possibility of mounting extraordinarily difficult equality-based challenges grounded in evidence of malfeasance by specific bad actors in a defendant’s case. That hardly seemed worth it to try from the perspective of the average person charged with a serious crime, represented by an overworked lawyer and no access to the black box of decision making by prosecutors or jurors. “Smoking gun” evidence was the stuff of movies, not the daily reality in criminal courts across the nation. For these and other reasons, the McCleskey decision exacerbated the crisis of legal liberalism, which for decades had depended on courts to correct structural problems in society. But those prospects dimmed as the necessary conditions for legal liberalism collapsed. The appointment of conservative jurists, a major shift within the Democratic Party to accommodate resistance to the legacy of legal liberalism, and mounting doctrine hostile to a progressive vision of legal change emerged as structural obstacles to abolitionists.¹⁵

Drawing on interviews with key players as well as archival research, this Article shows how a group of abolitionists based in the Deep South tried to exploit the McCleskey decision. They did so by subverting the Court’s intentions and assumptions, challenging a host of local practices and allegedly racist state actors. These advocates created favorable outcomes in subsequent capital cases, and then portrayed their discoveries in ways that shook the McCleskey Court’s tidy presentation of the legal system as well-functioning, rational, structurally sound, and non-racist.¹⁶

Part I revisits the McCleskey decision, emphasizing what the Justices tried to accomplish as well as the law of unintended consequences that often characterizes constitutional politics. Judges write opinions to decide constitutional questions, believing they will be able to persuade people beyond the specific litigants before them, but in reality, judges have little control over how others will receive their rulings or what they will do with them. In this instance, a subset of abolitionists responded by engaging in what I call “rebellious localism,” a strategy of marshaling available resources and deploying them at county and city officials in the service of transformative ends.¹⁷ They made these adjustments to public law advocacy so they could continue raising racial bias claims without giving up on their structural critiques. Besides trying to save their clients’ lives, their goal was to undermine the presumption of fairness and neutrality contained in the Supreme Court’s rulings. Chipping away at the parsimonious vision of racial equality in case after case might then lay a foundation for the eventual repudiation of McCleskey.

Typically, advocates who want to erode a Supreme Court precedent criticize it across the board to try to deny social acceptance of its vision of the law. In this instance, however, death penalty abolitionists denounced the ruling outside of the legal system but tried to exploit assumptions contained in the ruling for a broader vision of equality in their own cases. This adaptation was necessitated by not only the perception of hostility toward the ideal of equal justice, but also the asymmetrical obstacles encountered by defendants who raise fact-intensive constitutional issues. This newfound approach contained three key facets: intensifying issues, subverting doctrine, and scaling downward.

Part II focuses on specific cases in the wake of McCleskey in which SCHR lawyers or their allies escalated their tactics in capital cases. These cause lawyers aggressively asked for hearings (often getting them), put prosecutors and judges under oath, and moved to recuse prosecutors who engaged in misconduct or judges who tolerated racist trial practices. They pioneered creative strategies for gaining access to state records and quantitative evidence to challenge everything from jury venire practices to peremptory strikes by prosecutors. Rebellious localism in this context not only kept their clients alive and raised the costs of litigation for the state, but it also yielded valuable precedent for future cases.

Using two case studies, Part III shows how the strategy of rebellious localism paid off by closely examining how abolitionists’ use of these strategies unfolded in Horton v. Zant and State v. Brooks.¹⁸ Special attention is paid to the synergies between litigation and out-of-court advocacy, as well as the management of tensions between the primary goal of harm reduction and secondary goal of legal reform.

For those who engage in the politics of repudiation, the ultimate objective is to eventually persuade an apex court to overrule a despised precedent, or water it down with exceptions, or to stop using that case to justify policies.¹⁹ Abolitionists and racial justice advocates have not yet achieved that, but other kinds of progress are worth noting, such as the rejection of McCleskeyby state legislators and state courts. The conclusion considers how to evaluate success in ongoing efforts to resist a hated decision and render it infamous in the public mind. It also considers what this episode teaches us about judicially driven efforts to insulate the criminal justice system, as well as prospects for rebellious localism in the future.

I. IN THE SHADOW OF AN INFAMOUS RULING

A. A Difference of Opinion at the Grassroots

Although discretion lies in the hands of several different actors within the criminal justice system, a great deal of responsibility for the disparities probably could be laid at the feet of prosecutors. Formally, in exercising executive power, they act as gate keepers: capital punishment can never be imposed unless a prosecutor files notice to seek it.²⁰ In practice, most prosecutors never seek the death penalty, while a handful opt for it every chance they get. When they do pursue death as a punishment, they also sometimes change their minds.

Some district attorneys operate under strict policies, while others do not even consult an office policy beyond what the state law says.²¹ For instance, in Fulton County, where Warren McCleskey was tried for shooting a white police officer in 1978, the District Attorney at the time “had no written or oral policies or guidelines to determine whether a capital case would be plea-bargained or brought to trial.”²² The absence of consistent policies raised the specter of unbridled discretion, exacerbating any racially biased decisions by individual actors.

At the time, the McCleskey litigation split the abolitionist community along generational lines, but no steps were taken to interfere with an effort driven by advocates who had been in the trenches the longest. While the older guard—represented by the brilliant Anthony Amsterdam—retained their faith that the Justices would once again use their Article III authority to enact broad changes to criminal policy like structural reform cases in the mold of Brown v. Board,²³ the younger advocates were wary of what the increasingly conservative Supreme Court might do with the case.²⁴ Some of them turned out to possess the unique skillset for the next phase of grinding, a case-by-case form of grassroots advocacy necessitated by the high court’s rightward tilt.

Stephen Bright had taken over the reins of SCHR after running D.C. Law Students in Court. From the start, Bright had his doubts about whether the McCleskey litigation would pay off in getting judges to declare the death penalty unconstitutional. “I don’t think it’s going to work like that,” he told Bryan Stevenson, then just two years out of law school and a staff attorney at SCHR.²⁵ Bright did not believe that the Court would allow capital punishment to resume nationwide in Gregg v. Georgia,²⁶ only to shut it back down so soon based on a broad equality rationale. He knew that Justice Lewis Powell, a centrist, had already objected to abolition “by judicial fiat” and expressed hostility to systemic inequality claims in Furman, saying that the penalty’s disproportionate impact on the poor and racial minorities was “tragic,” but ultimately irremediable, and that past intentional discrimination “is no justification for holding today that capital punishment is invalid in all cases.”²⁷ In fact, Justice Powell optimistically believed that the “discriminatory imposition of capital punishment is far less likely today than in the past.”²⁸

Neither Bright nor Stevenson played an active role in the McCleskey litigation. They feared a bad outcome, even though they agreed that discrimination remained a serious problem. In fact, Bright had even told Baldus at the time, “I see even more racism than what you show!”²⁹

On April 22, 1987, by a 5-4 vote, a bitterly divided Court in McCleskey refused to enforce the principle of equality in an opinion by Justice Powell, who had been on the losing side in Furman. In doing so, the Justices made it harder for defendants nationwide to prove racial discrimination within the criminal justice system, especially based on statistical evidence alone. Setting the constitutional bar high, the Justices were not satisfied by a showing of alarming racial disparities; they simply would not act unless someone could demonstrate exactly who was responsible for the inequities in a complex system with many moving parts. When a criminal law was race neutral, the mere risk of racially discriminatory enforcement was insufficient to make out an equal protection violation.

To justify this position, Justice Powell stated that “disparities in sentencing are an inevitable part of our criminal justice system” due to the discretionary roles afforded to prosecutors, judges, and jurors.³⁰ In fact, his interpretation of the Equal Protection Clause treated discrimination as the price of mercy. A jury can decline to impose the death penalty, Justice Powell wrote, but “[w]hereas decisions against a defendant’s interest may be reversed by the trial judge or on appeal, these discretionary exercises of leniency are final and unreviewable.”³¹ From this point on, in order to protect a prosecutor’s “traditionally ‘wide discretion’ ” in making charging decisions, “we would demand exceptionally clear proof before we would infer that the discretion has been abused.”³²

This amounted to a major retreat from precedents like Furman, where the Justices had worried about irrationality and racial discrimination infecting the administration of criminal laws, and even Gregg, where they had allowed the death penalty to be resumed but warned that “the penalty of death is different in kind from any other punishment” and could not be inflicted when there existed “a substantial risk” of depriving someone’s rights.³³ The McCleskey Court worried that the defendant’s equality argument would open the door to consideration of other disparities in the legal system—perhaps even leading to a kind of affirmative action for death sentences.

Justice Powell in particular had become convinced that a win for McCleskey would “throw[] into serious question the principles that underlie our entire criminal justice system.”³⁴ He heartily endorsed the view of prosecutors, who insisted that the defendant’s racial equality claim strikes at “the heart of the judicial system.”³⁵ Absurdly, Powell feared a kind affirmative action that flowed naturally from accepting statistics as evidence of intentional discrimination: “What if one accepts the study as reflecting sound statistical analysis? Would this require that no blacks be sentenced to death where victim was white?”³⁶ He also wished to deter further attacks on the criminal justice system through the use of statistics, troubled that accepting the form of proof represented in the Baldus Study would “invit[e] a system of ‘statistical jurisprudence’—unprecedented in civilized history.”³⁷ There seemed to him “no limiting principle to judgments in criminal cases based solely on statistics.”³⁸ Years later, Powell would express regret for his role in pushing his colleagues to this outcome. But far too late—the damage had been done.³⁹

B. Rebellious Localism

Constitutional actors must calibrate their strategies to deal with shifting political and cultural conditions. Arguments and approaches that work in one historical moment may not work in a different moment. How would social actors in the field of action react at a moment of crisis for legal liberalism? For decades, liberals had turned to the courts as a vehicle for reforming society’s key institutions. The fact that the criminal justice system was among the least affected by the Civil Rights movement did not dampen legal liberals’ ardor for court-centered projects. To the contrary, that fact simply reminded them of how much further judges needed to go. And yet the conservative revolution made most visible through Nixon’s war-on-crime politics, though propelled by elites of both major parties, put legal liberals on their heels.⁴⁰ Public officials elected after complaining of the Warren Court’s excesses secured the appointment of judges hostile to the further expansion of many rights—especially those of criminal defendants.

On a Court reshaped by Republican presidents, Justices Powell, Rehnquist, Scalia, and O’Connor were most skeptical of the Warren Court’s legacy and its approach to legal liberalism. They would work hardest to protect the state’s crime-fighting prerogative by making it more difficult for defendants to bring constitutional challenges and insulating the decisions of police officers, prosecutors, and judges from civil lawsuits. In response to changing institutional conditions, would activists abandon legal liberalism or find some way to rekindle their commitment to the enterprise?

Among racial justice advocates, the immediate reaction to McCleskey was disenchantment. Anthony Amsterdam, who argued Furman in the Supreme Court, called McCleskey “the Dred Scott decision of our time,” one that declares that “African-American life has no value which white men are bound to respect.”⁴¹ Bryan Stevenson felt shattered and never fully escaped the feeling of demoralization. “Most of us were just devastated, most of us were just unbelievably heartbroken,” he said years later.⁴² “I thought about Brown the day McCleskey was decided. I couldn’t make sense of how the United States Supreme Court . . . could be talking about the inevitability of racial bias in the administration of the death penalty.”⁴³

Stevenson denounced McCleskey for enabling unequal application of capital punishment, but in truth, the extinguishment of large-scale equality claims was part of a broader pattern of judicial entrenchment of War-on-Crime policies that fanned out in different directions. These policies included rulings that preserved police discretion on the streets and created doctrines restricting the availability of habeas corpus.⁴⁴ Eventually, McCleskey would form a part of a losing pattern as litigation aimed at making the U.S. Supreme Court’s death penalty jurisprudence more equitable or humane went sideways, reflected in such cases as Stanford v. Kentucky, which refused to stop the execution of juvenile offenders, and Penry v. Lynaugh, a case that permitted the execution of a man with the mental age of a 6-year-old child.⁴⁵ “By the end of the 80’s, all of that stuff had failed,” Stevenson summed up.⁴⁶

Bright similarly believed McCleskey to be “an everlasting blight on the Supreme Court and a badge of shame for the state of Georgia.”⁴⁷ He put McCleskey in the company of not only Dred Scott, but also Plessy v. Ferguson, the notorious ruling that upheld a Louisiana law requiring “separate but equal” passenger coaches and emboldened segregationists for generations.⁴⁸ Thus, for many, disaffection was as predictable as an overall reduction of system-wide legal challenges. That’s where most analyses of McCleskey have stopped.⁴⁹

But for some of the most committed abolitionists in the Deep South, disenchantment about the rule of law did not lead to the wholesale abandonment of equality claims, much less structural ones. As their work necessarily became grittier and more pragmatic—a form of legal trench warfare—these cause lawyers not only continued to emphasize racial inequality claims, but they also broadened their critiques to encompass poverty, a related ground that did some of the work of centering race but also had the benefit of moving to different terrain that might pick up new segments of the community.

In this sense, the Supreme Court’s ruling produced the first of many ironic effects: deepening the resolve of activists to redouble their efforts to prove systemic racism. Opponents of McCleskey would have to outmaneuver their counterparts, ratchet up their tactics against carefully curated targets, delay the worst harms arising from unjust policies, and persuade lower court judges to reshape doctrine to their preferred contours.⁵⁰ Outside the courthouses, they would shame local public servants and citizens into seeing their clients as victims of unequal justice and do something about it.

Of course, rebellious localism in the capital context was not the same as the strategy might appear in other contexts. It remained court-focused because the short-term goal of harm reduction in this high-stakes context—namely, keeping a client alive for as long as possible—remained paramount. But as practiced by SCHR lawyers, the method retained a structural critique as well as a commitment to long-term transformation, with an eye towards grassroots mobilization and construction of a counter-vision of equal justice. All of this was directed at contesting the perception that the Constitution no longer served the interests of the poor or racial minorities.

I call this aspect of their reaction to unfavorable law “issue intensification.” Instead of giving up on equality claims in this domain, which would have been a perfectly natural response to an increasingly hostile political and cultural climate, some social actors instead doubled down on equality. In certain situations where anti-death penalty lawyers might have passed over an equality claim, they lodged one anyway to preserve the issue and in the hope that more evidence to support it might materialize years later. Harsh procedural changes already pushed advocates toward such an adaptation in strategy as they tried to prolong litigation to save lives, but McCleskey reinforced their darkening expectation that problems of proof and procedure would be held against an individual on appeal and during collateral review.

Besides manipulating doctrine on substance and procedure in ways that disfavored progressive liberal legal projects, high-profile judges also advocated legislative reform to close the courthouse doors further, citing abusive litigation. A year after the McCleskey decision, Justice Powell agreed to serve on an ad hoc committee established by Chief Justice Rehnquist to propose restrictions on habeas corpus petitions by death-row inmates. Justice Powell’s leading role in McCleskey, followed by his subsequent call for additional restrictions on the Great Writ, deepened abolitionist suspicions that the Supreme Court was biased against racial minorities and wanted to speed up executions regardless of the costs. The growing judicial-legislative initiative, which would attract the support of War-on-Crime state attorney generals, heightened their awareness that every possible trick would be used to prevent structural injustice from being seen or addressed.⁵¹ As a result, advocates would at times raise more allegations of discrimination than they likely would have before McCleskey. Although they rejected nearly every word of the McCleskey ruling in their hearts, they managed any sense of dissonance by citing the case in court and treating it as good law, while denouncing it in other domains.

Bright was a realist, as well as a close and creative reader of judicial decisions. After “pulling the decision apart,” he urged fellow abolitionists to take the Justices at their word.⁵² The key was Justice Powell’s insistence that a defendant had to prove that decisionmakers in his own case acted with a discriminatory purpose. Bright told Stevenson and other allies: “There’s language in here we can do something with.”⁵³ The best response, he said, was to identify every single situation where a judge or prosecutor might have acted out of bias and “to litigate the hell out of it.”⁵⁴

Bright’s move to turn a shield fashioned for prosecutors into a sword to be wielded by defendants should be considered a form of “doctrinal subversion.” Instead of acceding to the Court’s plan to insulate the criminal justice system, SCHR and its allies redeployed the precedent to go after some of the system’s most prominent guardians: prosecutors and judges. This amounted to ignoring the system-insulating motives in McCleskey itself, and seeing just how far they could take the Court’s insistence that a defendant could still advance a claim if he offered evidence “that would support an inference that racial considerations played a part in his sentence.”⁵⁵

These abolitionists even called their filings “McCleskey motions” to reclaim that precedent on behalf of a more robust vision of equality. The Supreme Court’s ruling in McCleskey was well on its way to becoming an infamous decision in the legal academy and among the public interest lawyers at large, but in these Southern courtrooms, Bright and others treated

the decision as if it represented good law in demanding discovery and hearings.

One of the things McCleskey questioned was “whether any consistent policy can be derived by studying the decisions of prosecutors” across several different counties since so many variables were involved in charging decisions.⁵⁶ In other words, Justice Powell thought the inference of intentional discrimination was greatly weakened—he said the disparities were not “stark” enough—because of the sheer spatial expanse from which the data was derived as well as the large number of human actors making decisions based on “innumerable factors.”⁵⁷

Bright proposed a solution to this problem: identifying situations where a particular prosecutor, judge, or local jurisdiction had a reputation for engaging in discriminatory behavior. I call this aspect of SCHR’s effort to make equality claims more palatable to skeptical judges the scaling down of relevant constitutional theories and the targets of enforcement. By focusing on specific bad actors and simplifying the causal stories of discrimination, advocates hoped they would not trigger the slippery slope problem Justice Powell found so daunting.⁵⁸ The goal was to go hard after unethical prosecutors and “hanging judges” (judges elected based on their record as tough-on-crime prosecutors) who appeared to treat black defendants, black jurors, or black victims more harshly. So long as the evidence was compelling, offering a judicial remedy could be isolated to particular actors or local jurisdictions and therefore would not bring the entire justice system to its knees, as Justice Powell feared.

All three adjustments—intensifying their emphasis on issues of equality, subverting doctrine, and scaling down—comprised a response to negative developments in constitutional law. Together, these tactical choices helped resuscitate belief in legal liberalism at a time that Mike Seidman has incisively described as “an environment marked by liberal collapse and conservative hibernation,”⁵⁹ before even more muscular forms of judicial conservatism appeared.

These shifts in strategy entailed making tradeoffs: how to continue engaging in advocacy that might produce measurable gains through harm reduction as well as doctrinal improvement, while managing scarce resources in a time of cultural fatigue over racial equality claims. By making these adjustments, Bright and his allies developed a distinctive form of rebellious localism. This major shift in strategy can be understood as an example of what Mark Tushnet has termed “defensive crouch liberalism”⁶⁰—adaptations by progressives to the fact that federal courts became dominated by conservatives. But these adjustments lacked the “nervous” form of advocacy Tushnet suggests is emblematic of liberalism seen in so many quarters for fear of retaliation by conservatives.⁶¹ Rather, presuming a national conservative backlash was already underway, the trick became finding moments, spaces, and places far away from national elites where conceptions of rights could be pushed openly and fearlessly. In doing so, SCHR and its allies began to construct a counter-narrative that post-racial America had not yet arrived, and that the criminal justice system had never been successfully reconstructed.

C. Post-McCleskey Surprises

A fruitful point of entry into the historical record is to consider these strategic adaptations in the wake of seemingly unjust Supreme Court precedent as a species of unintended consequences. Sociologist Robert Merton has called the unanticipated consequences of purposive action “those elements which would not have occurred had the action not taken place”; such effects “result from the interplay of the action and the objective situation.”⁶² Most of the time we act “not on the basis of scientific knowledge, but opinion and estimate,” Merton writes. This is especially true when it comes to law as a species of social activity: judges create doctrine hoping that certain consequences will happen. They tinker with doctrine, often overestimating their own ability to shape the behavior of others. Even so, this is unavoidable: judges make constitutional law predicting that relevant social actors will internalize their pronouncements and behave in certain ways, but in truth judges have wholly inadequate information about other social actors’ motivations, commitments, and resources.

Merton identifies the situation where “[p]ublic predictions of future social developments” can themselves “become a new element in the concrete situation” and thereby “change the initial course of developments.”⁶³ Just as Marx’s prediction of progressive concentration of wealth and increased misery of the masses helped lead to the rise of organized labor, thereby slowing developments predicted by Marx, so too it might be said that popular awareness of the Supreme Court’s desire to insulate the criminal justice system from fundamental challenge and thereby wish a post-racist society into being itself became a factor in confounding those original expectations. As Merton points out, “[t]his contingency may often account for social movements developing in utterly unanticipated directions.”⁶⁴ A case like McCleskey can become so imbued with social meaning that it becomes part of a broader struggle over legal principles, thereby facilitating surprising shifts in organizational behavior and to the law itself.

Consider several unintended consequences. First, Justice Powell did not expect that his decision would be used as Exhibit A in teaching a generation of lawyers and activists about poor constitutional reasoning and the problem of judicial callousness. Within the criminal defense bar, and among the smaller, tight-knit community of cause lawyers, McCleskey became a rallying cry to reject the Court’s seeming command to abandon efforts to prove systemic racism. The ruling itself began to play a role in identity formation: more criminal defense lawyers began to see themselves as cause lawyers taking on a thoroughly unjust legal system—at least part of the time.

In fact, the ruling spawned political efforts to repudiate the ruling’s tolerance of racial inequities in the criminal justice system. Legislation was introduced in Congress to permit defendants to introduce statistical evidence to demonstrate that the death penalty is enforced in a discriminatory manner. Efforts to undermine McCleskey’s logic also emerged at the state level. Although the Racial Justice Act has never been enacted by the U.S. Senate (it has passed in the House), grassroots activism led to the enactment of state analogues in North Carolina, Kentucky, and—in the most far-reaching form—California.⁶⁵

Second, the Court underestimated the possibility of a differentiated response to the ruling due to the variety of criminal defense lawyers. It’s one thing to expect court-appointed lawyers heavily dependent on judicial favor or already overburdened public defenders to shy away from making equality claims after a doctrinal test is made harder to satisfy. It’s quite another to expect abolitionist organizations to renounce equality claims without a fight. Groups with the capacity to draw upon out-of-jurisdiction manpower and donations could still choose to invest in the heavy lifting necessary to pursue allegations disfavored by the Supreme Court and do so in venues beyond that institution’s capacity to control.

Nor did the Justices foresee that success in a single case could be leveraged successfully to throw other death sentences, and even some convictions, into serious doubt—and even spawn more structural equality claims. When a judge found a prosecutor or judge engaged in unconstitutional actions, especially a violation of the principle of equality, SCHR lawyers exploited that decision for all it was worth, arguing in other cases involving that person or the entire office was hopelessly tainted by racism.

To these advocates, McCleskey had ripped the mask off an unjust system. If they continued to behave like business as usual and gave such figures the benefit of the doubt, they would be complicit in perpetuating cruelty and inequality. Instead of propping up that illusion of neutrality, they vowed to break norms of civility and insist that judges and prosecutors step aside—another unanticipated byproduct of the ruling.

Third, in constructing McCleskey, Powell believed he was protecting faith in the rule of law by shutting down all but the rarest system-wide constitutional challenges. Instead, the ruling would end up inspiring a fresh round of even more intensive equality-based challenges at the local level. Worried about the need to document all the ways that race and poverty shaped capital outcomes and educate fellow citizens as well as jurists, some advocates filed more pre-trial motions than they ever did before, challenging everything from jury selection processes to prosecutorial charging decisions. During post-collateral proceedings and retrials, SCHR lawyers also demanded transparency, seeking access to a prosecutor’s notes to bolster their claim that charging decisions were racially discriminatory or that prosecutors had tried to manufacture all-white juries.

A subset of cause lawyers thus engaged in more high-risk, high-reward moves to target bad actors involved in administering the justice system. Individual judges and prosecutors were swept up in these efforts to expose the inner machinery of the death penalty system, which blackened not only their reputations, but also that of state attorney generals who chose to defend local practices. That unintended development arguably undermined faith in the rule of law far more than endorsing McCleskey’s challenge would have done, especially if the Court could have envisioned a path to a narrow remedy in that dispute.⁶⁶

Fourth, with the exception of Justice Scalia, who objected privately to any suggestion that the Baldus Study was inherently unsound (he was simply more forthright in his willingness to tolerate persistent inequities),⁶⁷ the Justices were uneasy with quantitative analysis. The majority hoped to dissuade structural advocacy that relied upon these kinds of statistics. Justice Powell warned his colleagues that if the Baldus study were accepted as sufficient proof of an equality violation, it would “invit[e] a system of ‘statistical jurisprudence’—unprecedented in civilized history.”⁶⁸ The irony, of course, is that by expressing such a distaste for numbers and a strong preference for direct evidence of racial hostility, the McCleskey decision may have encouraged advocates to become more aggressive and comprehensive in introducing evidence of actions, sentiments, and associations that at times could actually be less reliable in demonstrating racial bias. Simpler evidence is not always better evidence. In retrospect, it may have been suboptimal to funnel such complicated evidence of structural bias into state courts, which might have less expertise with such evidence.

Acquiring direct as well as quantitative evidence of bias, and then arguing about its merits openly in court, would also inevitably prolong trial proceedings and threaten to turn them into communal spectacles. Such consequences, too, would not have been optimal from the standpoint of the Supreme Court, which had increasingly prized efficiency and finality in capital cases. The justices’ failure to consider this possibility was anticipated by Merton, who describes “the ‘imperious immediacy of interest’ . . . where the actor’s paramount concern with the foreseen immediate consequences excludes the consideration of further or other consequences of the same act.”⁶⁹

In short, Justice Powell wanted fewer structural equality claims, not more, and reduced conflicts over race, rather than more intense ones. He hoped to dissuade use of statistical proof to undermine criminal judgments and promote belief in the rule of law. As we shall also see, the McCleskey decision certainly did not put an end to a battle of experts. It did not even

stem allegations of racism in death penalty cases. It just shifted the theater of conflict.

II. SHAMING THE SYSTEM

Litigating in the shadow of McCleskey “was a time of transition,” recalled Stevenson; “[t]hinking more creatively about how to expose these problems became a higher priority.”⁷⁰ It’s important to see that rebellious localism was not just about adjusting litigation strategy; it also became about grounding these new courtroom tactics in grassroots mobilization. The McCleskey decision felt like a historical break to these activists. They saw it as the moment they realized “a new model would be needed.”⁷¹ Others observed a decisive rhetorical shift in Bright, who from that moment on “talked more proactively about issues of race, and class, and power.”⁷²

Instead of giving up on equality claims, Bright encouraged his staff to double down on proving inequality. McCleskey required a person to prove that specific individuals “in his case acted with discriminatory purpose,” and that’s exactly what they would do.⁷³ With Bright leading the charge, they vowed to go county by county, prosecutor by prosecutor, and judge by judge if necessary to ensure their clients got a fair trial. But they would not let go of their sense that the problem of inequality was not that of a few individuals, but entire offices and even jurisdictions.

“No one was prepared before McCleskey to go into some place like Swainsboro, Georgia, and use the language of intentional discrimination in a proactive way for an individual client,” said Stevenson. “But that’s what we did after McCleskey.”⁷⁴

A. Expanding the Scope and Targets of Equality Claims

McCleskey had emboldened death penalty enthusiasts. For instance, Georgia Attorney General Michael Bowers confidently stated, “I do not see any racial discrimination in motive or effect in the imposition of the death penalty.”⁷⁵ Bright believed that most members of the Supreme Court simply had no idea who was involved in keeping the machinery of death humming.⁷⁶ As a result, his staff had to build a persuasive record of bias in each case they handled. This meant two things: (1) intensifying challenges to suspected bad actors and getting more deeply into the background of prosecutors and judges to discern their racial attitudes; and (2) continuing to make structural inequality claims by experimenting with creative and aggressive ways to bring such claims in capital cases. Publicly expressed sentiments and actions, office practices, family histories, and even personal associations all became fair game.

In the view of SCHR lawyers, citizens and jurors became cogs in a killing machine that policymakers tried to make more efficient; the accused, dehumanized through the legal process. Through rebellious localism, Bright and his staff vowed to not only show the inherent brutality of this form of punishment, but also record and dramatize its racial effects in each case in which they played a role. They believed that citizens would be more hesitant to impose it in specific cases, and that the community as a whole would eventually turn away from the practice once stories of unfair and unequal administration spread.

Scaling down thus also meant bringing novel legal challenges to older forms of racial power that many people had just accepted long ago as part of the fabric of social life in the Deep South: Confederate battle flags in official state flags,⁷⁷ a judge’s membership in an exclusive club or voting record as a former legislator, a relative’s membership in the Ku Klux Klan or participation in a lynching. Their goal was to show just how much death penalty trials were permeated by racial bias in ways that went well beyond what the McCleskey Court had assumed.

Moving to recuse judges and prosecutors with a reputation for racial discrimination became part of the arsenal. SCHR lawyers also began filing motion after motion demanding that judges disclose how often they used the “N” word, whether they had ever hired African Americans as clerks and staff, and whether they sent their kids to segregated schools.

When a judge or prosecutor would resist making such disclosures, as expected, insisting that “you can’t put me on trial here,” Bright converted the McCleskey decision from a shield into a sword.⁷⁸ “Yes, I can,” he told skeptical trial judges.⁷⁹ “McCleskey v. Kemp says I have to show whether you are prepared to give fair and just treatment to my minority client.” ⁸⁰ This was “the kind of litigation most people ran from,” Stevenson explained, “but Steve embraced it.”⁸¹

More so than in its early years, SCHR treated this new era of “hand-to-hand combat” as a chance to get local communities involved. Before McCleskey, they worked mostly with the criminal defense bar and a smattering of cause lawyers. But afterward, “the connections with the traditional civil rights community started to take shape.”⁸² When SCHR lawyers went into a community to defend a person against the death penalty, they would bring a famous civil rights leader such as C.T. Vivian, who had been close to Martin Luther King, Jr., or Dr. Joseph Lowery, president of the Southern Christian Leadership Conference.

By spending time in these local communities, they met families who had experienced first-hand neglect and mistreatment by police and later, prosecutors and judges. “It became apparent that civil rights were going to have to be at the heart of what we do,” Stevenson explained.⁸³ For instance, during one pre-trial hearing, SCHR lawyers put on black witnesses who had been victims of violent crime but had not heard much from the district attorney’s office. Such evidence, in Bright’s view, showed that “black lives are not valued in the same way as white people’s lives,” and bolstered the defense’s empirical evidence indicating that the prosecutor’s office sought the death penalty far less frequently when similarly situated defendants had allegedly killed black people. Discriminatory charging decisions, they argued, denied one such black defendant on trial for killing a white person, William Brooks, equal protection of the law. In fleshing out this claim, the defense sharply contrasted how a District Attorney’s office would maintain close relationships with white victims of murder—even sometimes giving families a voice before major decisions in a case were made—with the frosty relationships with black victims. This amounted to not only evidence of official bias, but also what Monica Bell has called “legal estrangement” on the part of black residents.⁸⁴

Additionally, because black citizens were not responding to jury summonses at the same rate as white citizens, SCHR began holding events at black churches where a prominent civil rights leader would give a rousing speech “creating a consciousness that there was an obligation to serve.”⁸⁵ Stevenson or Bright would warm up the crowd by talking about a case they had in that county. Then a famous civil rights figure like C.T. Vivian would take the stage and tell stories of how he was beaten when he marched but had gotten back up for their right to vote and to serve on a jury. “Now when you get summoned for jury service, I want you to walk to the courthouse like we walked to the courthouse in 1963, like we walked across the bridge. Don’t wait until it’s your son sitting in a courtroom filled with white people and an all-white jury.”⁸⁶

Community organizing went hand-in-glove with litigation strategy. In the retrial of William Brooks, for instance, Bright filed a creative motion to deal with the fact that the poor response rate by black citizens to jury summonses had made it easier for prosecutors to manufacture an all-white jury during his first trial. In trying to deal with the pervasive problem of legal estrangement in their own case, they pointed out that “only eight of 160 summoned jurors were black” and that “a representative venire would have contained 50 black citizens.”⁸⁷ They told the judge that “to protect the constitutional rights of the accused,” he could not be passive but instead “should direct the service of summons to jurors be accomplished in a way that ensures a fair cross-section of the community actually appears for jury service.”⁸⁸

Bright and his staff asked the judge presiding over the retrial to provide specific relief: (1) that a “special venire of at least three hundred person be drawn with the initial selection process taking place in open court”; (2) that the Clerk issue summonses to those jurors selected and commanding them to appear “without making mention of the name of the case to be tried”; (3) that personal service be made upon any jurors who fail to respond; (4) that the clerk, sheriff, and other court personnel be directed not to disclose the case or name of the defendant prior to the jurors appearing in the courtroom; and (5) that any and all other steps be taken to ensure the venire represent a fair cross-section of the community.⁸⁹ These motions sent a powerful message to the prosecutor, the judge, and local citizens that trials of black defendants by all-white juries would be perceived as illegitimate even though the Supreme Court has never held that a defendant has a constitutional right to a diverse jury.⁹⁰

To ensure that poorer citizens would be able to participate, Bright also filed pre-trial motions asking that jurors be paid “their current wage and to compensate primary caregivers for day care costs.”⁹¹ They argued that “[d]aily wage earners and primary caregivers for young children are cognizable groups for Sixth Amendment purposes” and that their underrepresentation in Brooks’ trial and others would violate the Constitution.⁹²

Black citizens began appearing for hearings in SCHR’s cases, especially when they sought to recuse judges or prosecutors or get the state flag, which contained the Confederate flag, removed from the courtroom for the trial. Instead of an empty courtroom, the place would be packed with black people concerned about the quality of justice, who transformed a mundane legal proceeding into a communal event.

That happened for the retrial of Brooks. In a letter dated September 5, 1990, Bright and George Kendall discussed several themes that Dr. Joseph Lowery might work into an upcoming community presentation in Columbus.⁹³ The first theme was to explain that “discrimination is worse in the criminal justice system than anywhere else, that everyone has looked the other way for too long, and that it is urgent that something be done about it.”⁹⁴ Second, citizens could “learn more about discrimination in the justice system by going to our hearing in the William Anthony Brooks case on discrimination.”⁹⁵ Third, concerned citizens could sign postcards SCHR prepared to urge members of Congress to enact the Racial Justice Act. They could also organize to deny the current district attorney a judgeship “if he continues his practice of discrimination in seeking the death penalty.”⁹⁶ As Bright explained to Dr. Lowery: “The last two District Attorneys both are judges now and both used the death penalty to get there.”⁹⁷ According to Bright and Kendall, “[b]oth Whisnant and Smith were famous for lynch-mob type closing arguments at the sentencing phase where they would ask for the death penalty.”⁹⁸

Most critically, Bright and his staff came up with imaginative ways of developing their own evidence against the worst prosecutors and complicit trial judges. They did so, for example, by taking advantage of a state’s “sunshine laws” to inspect state records. In Georgia, those records extended to a prosecutor’s files once an appeal had been decided. SCHR lawyers also began putting historians, statisticians, and other experts on the stand during pre-trial hearings to document the state of local justice. They would litigate pre-trial motions—including any McCleskey motions—vigorously.

“We really focused hard on this,” Stevenson recalled. It was a concerted “reaction to McCleskey and the new world we were in. We had to more carefully articulate the nature of racial bias.”⁹⁹

And so they did—by cataloging and exposing inequality and unfairness wherever they could, in every setting in which an issue about the quality of justice could be credibly raised. To Stevenson, this major shift in strategy was “really exciting because we all knew the truth about how these people thought. We had experienced it.”¹⁰⁰ He could see that it was also “empowering” for Bright because “you observe bias time and time again, and the conventions of the law require you to stay silent. To now be able to use the law in service of saying something was very, very energizing.”¹⁰¹

Paradoxically, SCHR was well placed to engage in rebellious localism precisely because they were not part of the local power structure. They were based in the region, but not insiders. The organization’s funding did not come only from court-appointed cases. The overall strategy thus played to SCHR’s strengths. Staff could do the things that court-appointed lawyers, whose livelihood depended on good relations with local judges and prosecutors, simply could not do and for self-interested reasons, would not do. Bright also believed that requiring attorneys to take criminal cases for such low pay meant that lawyers often did not care about their non-paying clients. How many times had a court-appointed lawyer not bothered to make a constitutional claim, investigate something a client said or contact a possible witness, or lodge an objection simply because doing so would drag out the case or annoy members of the local power structure?

This point was not about comparative or absolute resources as much as it was about relative independence. This strategy was deployed in the early decades of the era of mass incarceration, when SCHR had only a shoestring budget and relied heavily on small donations, a few grants, and fee awards from prisoner’s rights lawsuits. Yet, freed from the financial and political conditions that structured how everyday criminal cases were handled, the organization found itself in a position to demand more of the legal system. Bright and his staff would still insist upon being paid by the state for criminal defense work just like local lawyers who had to eke out a living by taking court-appointed cases, even if they ended up working longer hours that would go unreimbursed, because the principle of equality for indigent representation mattered. At times, they would even file separate lawsuits to lift existing restrictions on how much court-appointed defense lawyers could earn, believing that fee caps led to less thorough investigations and less competent representation of the poor.¹⁰²

During these years, Bright began developing his critique that people were sentenced to death not so much for the crimes they commit but rather for having an inadequate lawyer.¹⁰³ He realized that the absence of a public defender system in many places made unfairness a built-in feature of the justice system. The already asymmetrical criminal process left the quality of counsel for the poor completely controlled by local judges. This often led to shoddy representation by court-appointed lawyers who often wanted to close cases as quickly as possible and get back to paid work. Funds for experts were hard to come by; many lawyers representing the poor never bothered to ask.

Rebellious localism yielded other benefits beyond spotlighting racial inequities. A certain synergy arose between legal challenges to the practices of certain prosecutors and judges on behalf of clients facing the death penalty and SCHR’s civil challenges brought against local indigent defense systems, plea bargaining practices, and bail rules. More than once, focusing on a particular judge’s practices alerted the organization and others to pervasive problems that could then be challenged separately. Eventually, rebellious localism acquired a civil dimension to supplement its criminal law focus, as the Center added a variety of civil litigation strategies to try to halt death penalty proceedings or gain access to evidence that might bear on their claims. In showcasing the various deficiencies of the justice system, rebellious localism also helped revive the public defender movement within the state.¹⁰⁴ Overall, the approach proved highly effective in attracting media coverage of the nested problems within the criminal justice system.

B. Unrigging Juries

Because “that’s where we had the best law,”¹⁰⁵ that is, precedent vindicating the importance of the right to a jury of one’s peers stretching back to the post-Reconstruction Supreme Court case, Strauder v. West Virginia,¹⁰⁶ one area of intensive focus became about challenging a jury’s composition. Strauder had struck down a state law that barred black men from serving on juries. Over a hundred years later, it was still the case in many death penalty jurisdictions that “there were no black prosecutors, no black decision makers, and the only opportunity for a black person to play a role was on the jury,” Stevenson observed.¹⁰⁷ A good illustration was Columbus, Georgia, whose 10-person prosecutor’s office were all white men until the mid 1980’s, when the first black prosecutor in that county’s history was hired.¹⁰⁸ But, of course, in case after case Bright and others noticed “elaborate efforts being made to exclude black people.” Through their cases, they decided to “elevate how exclusionary the juries had been.”¹⁰⁹

In Amadeo v. Zant, Bright’s first case before the U.S. Supreme Court, Justice Thurgood Marshall invalidated Amadeo’s death sentence because of Putnam County’s scheme to systematically underrepresent black people and women in its jury pools.¹¹⁰ The Court singled out District Attorney Joe Briley’s memo to jury commissioners instructing them on how to permit just enough women and blacks into the pool without making it look too suspicious. A lawyer bringing an unrelated civil rights lawsuit against the county had discovered the “smoking gun” evidence. Based on this new evidence, a federal district judge had granted a writ of habeas corpus, but the Eleventh Circuit reversed, saying the claim was time-barred. Justice Marshall’s decision disagreed with the Eleventh Circuit’s handling of the procedural default issue and restored the federal judge’s order granting relief.

When the case was returned to Putnam County, Briley promptly had Amadeo reindicted for murder. A secondary legal battle then ensued when the trial judge refused to appoint Bright and his staff as attorneys of record until the Georgia Supreme Court ordered him to do so. Instead, the judge had tried to stick Amadeo with a different set of lawyers who knew nothing about the case.

SCHR had to battle the trial judge, the district attorney, and the state attorney general’s office to vindicate Amadeo’s right to the counsel of his choosing. Ultimately, the Georgia Supreme Court issued a landmark decision reversing the trial judge for interfering with Amadeo’s “relationship of trust and confidence with prior counsel.”¹¹¹

Back on the case, Bright and William Warner filed a slew of pre-trial motions. One motion sought to quash the indictment on the ground that the grand and traverse jury master lists “do not reflect a fair cross-section of the community.”¹¹² Referring to Amadeo’s earlier win in the U.S. Supreme Court, they insisted that he could not be tried unless additional “precautions be taken to assure that this time,” his rights were protected.¹¹³ Besides pointing out that the county’s past jury selection methods excluded women and black people, they added a new Equal Protection claim based on class. “The selection system utilized in this county is not class-neutral,” they argued, “and does not assure the inclusion of persons who are not registered to vote, persons who have recently moved to the county, and low income persons.”¹¹⁴ Because Amadeo was not a resident of Putnam County but an indigent “outsider” charged with serious crimes against “a highly respected member of the community,” they objected to a system that generated juries that lacked important “experiences, opinions, and perspectives.”¹¹⁵

In addition, Amadeo’s team filed an ex parte motion seeking funds for an expert to help them determine whether the county’s jury pools were, in fact, underrepresenting “recent migrants, unemployed persons, daily wage earners, [and] persons who are not registered to vote.”¹¹⁶

In an even more daring effort, Amadeo’s attorneys moved to disqualify all judges from the Ocmulgee Judicial District, made up of eight counties, including Putnam, based on a violation of the Voting Rights Act. They argued that the judges of the Ocmulgee Judicial District were elected as a result of unconstitutional procedures. The use of at-large election procedures for superior court judges had never produced a single black judge in the circuit, they noted, even though the population of the counties were between 37.42% and 78.24% black.¹¹⁷

This last motion revealed SCHR’s resolve in thinking structurally. Amadeo’s team demanded an evidentiary hearing so they could show “total or seriously disproportionate exclusion of black citizens from the Georgia judicial system, disproportionate impact of the decision made in the election and judicial systems of Georgia, the opportunity for discrimination, as well as other circumstantial and direct evidence of intent to discriminate as may be available.”¹¹⁸

On a couple of occasions, Bright put Stevenson on the stand as an expert witness to testify as to the difference between comparative disparities and absolute disparities. Stevenson had received a degree in public policy at the Harvard Kennedy School to go along with his law degree from Harvard. That made him conversant in quantitative analysis when the SCHR brought legal challenges to the underrepresentation of black jurors.

“The way the law is, we’d have to show an absolute disparity of over 10% before a court will see that as significant,” Stevenson said.¹¹⁹ “We’d routinely go to these counties where the county was 30% black, the jury pool would be 20%, if the county was 20% black, the jury pool would be 10%”¹²⁰ In any given jurisdiction, the disparity was not big enough for a defendant to mount a successful challenge, and yet it kept the absolute number of black citizens in the jury pool low enough that it was not hard for a prosecutor to eliminate the few black jurors using peremptory strikes.

Preserving the legal issue would also make the verdict of an all-white jury more vulnerable to reversal on appeal. Indeed, this frenzy of pre-trial activity created a general awareness among trial judges and prosecutors that legal errors might unsettle a conviction. This sensitivity improved advocates’ ability to “increase the numbers a little bit.”¹²¹ And that’s what they always wanted: a fighting chance in front of a mixed-race jury.

They also litigated jury demographic issues hard in Michael Berryhill’s case in Bartow County. Stevenson recalled that the jury commissioner had testified “they couldn’t get enough women on the jury because they had to be ‘upright and intelligent citizens,’ and we don’t have any of those or any black people.”¹²² However, the Georgia Supreme Court ruled on appeal that an 11% disparity between women in the county and in the jury pool was not “significant” enough absent evidence of “purposeful discrimination or systematic exclusion.”¹²³

They did not give up and introduced the same evidence as part of Berryhill’s federal habeas proceedings. This time, the Eleventh Circuit found that including only “intelligent and upright” women to the master jury lists was “highly subjective,” leading to severe underrepresentation.¹²⁴ A new trial was ordered because Berryhill had been denied a jury drawn from a fair cross section of the community.¹²⁵

C. Documenting Race-Based Jury Strikes

SCHR invested more and more resources into uncovering a related problem: proving that some Georgia prosecutors systematically used peremptory challenges to exclude black citizens from jury pools. Bright and his staff noticed that overzealous prosecutors would try to eliminate all, or nearly all black citizens from juries, even well into the 1980s and 1990s—especially when they wanted a death sentence against a black defendant. The way juries were composed, and the way prosecutors were using their largely unregulated strikes against black citizens in capital cases, seemed to be pillars holding up a system of unequal justice.

SCHR would eventually pile up victories on this front, not only in federal but state courts. Two of Bright’s later wins in the U.S. Supreme Court—Snyder v. Louisiana¹²⁶ and Foster v. Chatman¹²⁷—would involve reversals of death penalty convictions tainted by a prosecutor’s race-based peremptory strikes.

For now, though, they still had to deal with shifting legal standards. Until the Supreme Court made it easier to prove racial bias in peremptory challenges in Batson v. Kentucky,¹²⁸ the governing case was Swain v. Alabama,¹²⁹ which had established a standard that almost no defendant could overcome. In Swain, the justices rejected an Equal Protection claim even though no black citizen had served on a jury in a criminal trial for at least the prior 15 years. The only way for a defendant to prevail was to present proof that “the prosecutor in a county, in case after case, whatever the circumstances, whatever the crime and whoever the defendant or the victim may be, is responsible for the removal of Negroes who have been selected as qualified jurors by the jury commissioners.”¹³⁰

The battle over peremptory strikes played out in Georgia’s courts. Bright and Stevenson had gotten involved in another case that raised the jury composition issues—that of James Ford.¹³¹ Ford, a black man, was sentenced to die by a jury that contained only one black citizen. The prosecution used nine out of ten peremptory strikes to remove black jurors. At trial, the prosecutor had asked the trial judge whether he needed to explain his troubling pattern of strikes, but the judge said no, Swain did not require that, and simply overruled Ford’s objection. Swain itself had confirmed that “[t]he essential nature of the peremptory challenge is that it is one exercised without a reason stated, without inquiry and without being subject to the court’s control.”¹³²

The wrinkle presented in Ford’s case was a highly technical one: whether a defendant had lodged an objection in a timely fashion so that he could later raise the issue on appeal. In general, a failure to object barred a person from complaining about a trial-related error later. What made this case complicated was when the substantive law itself was in flux. What should be expected of lawyers during such a period of transition?

In Ford’s case, his lawyers had preemptively raised the equality issue by filing a pre-trial motion “to restrict racial use of peremptory challenges.”¹³³ They alleged that the county prosecutor had “over a long period of time” removed black jurors when a case involved a white victim.¹³⁴ After losing the motion, and receiving a death sentence, Ford again raised the issue, insisting that his Sixth Amendment rights had been violated.

While Ford’s cert petition was pending, the Supreme Court handed down Batson. If a defendant objected contemporaneously and could make out a strong enough showing of discriminatory conduct, a prosecutor would now have to give race-neutral reasons for exercising each peremptory challenge, and the judge had a duty to make a finding on the record as to whether to accept the explanations.¹³⁵ The new constitutional rule was far from perfect, for it was still hard to prove a nefarious motive on the fly, but it represented an improvement upon the earlier protocol.

The U.S. Supreme Court vacated Ford’s conviction and instructed the Georgia Supreme Court to review what happened under the new Batson test. But that court again upheld Ford’s death sentence, without conducting an evidentiary hearing or otherwise demanding that the prosecutor give explanations for his strikes as Batson required. In a Kafkaesque ruling, the Georgia Supreme Court simply ruled that Ford properly raised the Swain issue, which he had lost, but not Batson, which he was barred from raising now on appeal, deeming it too late.

Bright convinced Charles Ogletree of Harvard Law School to plead Ford’s cause before the U.S. Supreme Court on the return engagement. At oral argument, Ogletree hammered the inherent unfairness of the Georgia Supreme Court splitting hairs: “It is only after this Court’s remand, and without hearing from the parties, that the Georgia Supreme Court for the first time says that counsel has failed to make a record of this to survive a Batson claim.”¹³⁶ There were “no clear rules in existence” in the state courts governing when such an objection should be raised and “[t]o the extent that they were, counsel complied with them.”¹³⁷

Ford’s ordeal illustrated another facet of the legal system that could undermine the Constitution’s assurance of equality: the role of appellate judges. Whether out of indifference to rights or in defiance of a Supreme Court ruling, a state supreme court could exploit federalism to frustrate enforcement of constitutional guarantees. It could do so by applying state law broadly or by giving federal law a cramped reading. When that happened, a state court was basically daring a federal court to do something about it.

Indeed, one of the most egregious acts of state court defiance took place in 1955. That controversy also involved the Georgia Supreme Court asserting its prerogative to execute a black man despite an order by the U.S. Supreme Court to reconsider his constitutional rights.¹³⁸ Like Ford, the case also raised the problem of jury manipulation. Aubry Williams, condemned for killing a white liquor store clerk, appealed his case to the U.S. Supreme Court. Williams was tried by a Fulton County jury at a time when judges monitored the races of jurors by marking citizens’ names on different colored pieces of paper. In another case out of Fulton County called Avery v. Georgia,¹³⁹ decided just two months after Williams’ trial, the U.S. Supreme Court held that the county’s practice violated the Fourteenth Amendment. The problem for Williams was that his lawyers did not object at the time of his trial. His lawyers raised the issue for the first time in an extraordinary motion for new trial, but the state supreme court deemed the issue waived.¹⁴⁰ Under the “adequate and independent state ground” doctrine, a state’s ruling that an issue had been procedurally forfeited meant that a federal court had no jurisdiction to review it.¹⁴¹

When Williams sought certiorari, the Justices struggled with the possibility of letting a man die because of a racist jury selection procedure. On the other hand, rules were rules and federalism mattered. In an opinion by Justice Frankfurter, the Court vacated Williams’ conviction and invited the members of the Georgia Supreme Court to reconsider, appealing to their consciences that surely they would not “allow this man to go to his death as the result of a conviction secured from a jury which the State admits was unconstitutionally impaneled.”¹⁴²

Williams’s fate, as Ford’s would be a generation later, was trapped between evolving law and warring courts. In an angry opinion, the Chief Justice of the Georgia Supreme Court refused to give Williams a new trial and said that the U.S. Supreme Court lacked jurisdiction.¹⁴³ When Williams filed an emergency appeal, the Supreme Court backed down and refused to hear the matter a second time. That cleared the way for his execution.¹⁴⁴

Political scientist Del Dickson, who has studied that episode closely, believes that William’s rights were sacrificed on the altar of the Warren Court’s project to desegregate schools.¹⁴⁵ The Court was busy battling resistance to Brownacross the country and did not want to open another front on race matters. Forty years later, when the same court applied state rules to frustrate consideration of a constitutional right in Ford, the Supreme Court did not look the other way.

On February 19, 1991, Justice Souter wrote a unanimous opinion that repelled the Georgia court’s seeming defiance of Supreme Court precedent.¹⁴⁶ Ford’s attorneys had clearly raised a Swain claim. But in trying to draw a difference between these two cases, “the State assumes a distinction between the holdings in those two cases that does not exist,” he explained. “Both Swain and Batson recognized that a purposeful exclusion of members of the defendant’s race from the jury selected to try him would work a denial of equal protection.”¹⁴⁷

Georgia’s refusal to entertain Ford’s claim under the new standard amounted to a perverse form of logic, Justice Souter explained, because “Batson did not change the nature of the violation recognized in Swain, but merely the quantum of proof necessary to substantiate a particular claim.”¹⁴⁸ As a result, raising the peremptory strike issue was sufficient to preserve it, and the state court’s application of a new procedural rule announced two years later was not an “adequate and independent state ground” to prevent federal review.

To Bright, the lesson from handling Ford’s appeal was that they would have to battle appellate judges as much as prosecutors to ensure that basic rights would be enforced. Even so, their intensification of trial tactics proved to be worth it. Ford’s lawyers had earned him the right to a hearing. Once a hearing was finally held in state court, the original prosecutor was forced to testify as to his reasons for striking so many of the eligible black jurors. The trial judge summarily accepted those reasons, but on appeal, the Georgia Supreme Court reversed, building on Gamble v. State, another SCHR case and the very first time a Batson violation had been found by the state supreme court.¹⁴⁹

Chief Justice Norman Fletcher ruled that the district attorney’s explanations offered after the fact were not sufficiently “concrete” and “race-neutral” so as to overcome the “strong” pattern of discrimination in Ford’s case.¹⁵⁰ As he pointed out, “of the 42 persons on the panel from which the trial jury was chosen, ten, or 24%, were black.”¹⁵¹ In other words, the prosecutor “exercised 90% of his strikes to strike 90% of the blacks from the venire, while exercising 10% of his strikes to exclude a mere 3% of the whites on the venire.”¹⁵² Quoting Ford’s brief, Justice Fletcher said that “ ‘it does not require a statistician … to recognize’ the very high probability that this racial disparity did not occur strictly as a matter of chance.”¹⁵³ Against the weight of this pattern, the prosecutor’s explanations “fall short of proving that this disparity was the incidental result of neutral selection procedures.”¹⁵⁴

After losing in the U.S. Supreme Court and seeing the Georgia Supreme Court’s about-face, prosecutors folded and offered Ford a life sentence. Indeed, perhaps more than any other constitutional issue, a prosecutor’s use of peremptory strikes to prevent black citizens from participating in criminal trials had the potential to bring together judicial liberals and conservatives.¹⁵⁵ Not only did the rationale appeal to those who wished to preserve the democratic legitimacy of criminal judgments, it also appealed to those who might be open to upsetting a single criminal conviction without necessarily embracing structural critiques. For conservatives, deciding a case on this ground meant protecting the integrity of the legal system and dealing with “bad apples.”¹⁵⁶ Of course, judges could not completely control how advocates would characterize the violations that were discovered, and abolitionists tended to declare such misconduct evidence of structural flaws in the justice system.

D. Holding Prosecutors Accountable

After prevailing in the Georgia Supreme Court and being reinstated as counsel for Amadeo’s retrial, Bright and his co-counsel filed a giant pile of motions. The most important one sought to recuse Briley from leading the state’s case a second time.¹⁵⁷ This, too, became a part of SCHR’s arsenal whenever there was reason that a prosecutor had been involved in an equality violation. Rarely had there ever been any kind of consequences for such constitutional wrongdoing, whether professional, financial, or otherwise. Bright and his staff pitched their effort to block constitutional violators from (ab)using their power against the same defendants as a modest demand. But embedded in the move was a radical logic that state discretion was founded upon trust and good faith—notions that were fundamentally breached when a prosecutor acts in unequal and antidemocratic fashion by suppressing minority representation on juries.

Amadeo’s team also arranged for legal ethics experts to file a brief in support of the recusal motion. The signatories came from each of the state’s accredited law schools, including Mercer Law School, where Briley had gotten his J.D. In their brief, these experts argued that Briley’s “misconduct is shocking to the conscience” and violated his duty to ensure that “all citizens” in the community “stand on an equal footing before the law.”¹⁵⁸ Friends of the court cited Blackstone for the proposition that “special vigilance is required to keep our system of trial by jury ‘sacred and inviolate, not only from all open attacks, . . . but also from all secret machinations, which may sap and undermine it.’”¹⁵⁹ Invoking ethical standards created by the National District Attorneys Association as well as ABA Standards on the Prosecution Function, they observed that “the duty of the prosecutor is to seek justice, not merely to convict.”¹⁶⁰

Amici thus supported SCHR’s position that qualification of Briley was “required to protect the integrity of the adversary system, to assure public confidence in the administration of justice, to assure that the past misconduct does not interfere” with Amadeo’s retrial.¹⁶¹ The prosecutor’s misconduct presented “that most rare case,” they argued, “where there is a factual determination upheld unanimously by the United States Supreme Court that a prosecuting attorney intentionally tampered with the jury pools in an effort to subvert the constitutional rights both of the black jurors, and of Tony Amadeo, the litigant.”¹⁶² Additionally, the manipulation of jury demographics required legal expertise as part of the “intent to deceive” so that “a prima facie case of discrimination could not be established.”¹⁶³ Such misconduct also violated bar standards that prohibit “illegal professional conduct involving moral turpitude,” “dishonesty, fraud, deceit, or misrepresentation,” or behavior “prejudicial to the administration of justice.”¹⁶⁴

On the day of the hearing, witnesses were prepared to testify that Briley’s continued participation in Amadeo’s case would taint the outcome.¹⁶⁵ Bright had assembled Tom Johnson, county attorney for Hennipen County, Minnesota, Stephen H. Sachs, the former Attorney General of Maryland, and Professor Bennett L. Gershman, a leading expert on prosecutorial ethics. In the glare of such tactics, the state blinked. Rather than go through with a full evidentiary hearing, Briley offered a plea deal. He would withdraw the death penalty if Amadeo pleaded guilty to murder and promised not to seek parole for at least 25 years.¹⁶⁶

SCHR would continue to try to recuse prosecutors whenever they had proof someone was involved in a Fourteenth Amendment violation, particularly on the basis of race or poverty. And in the retrial of Brooks, they stepped up this tactic by enlarging their recusal motion against an entire District Attorney’s office, attacking its death penalty charging decisions and use of peremptory strikes over time as racially discriminatory.

E. Bouncing Judges

The first time Bright and his staff went hard after a trial judge believed to be “a hanging judge” was in the case of George Dungee, a Black man who had an IQ of 65-69. Dungee was one of three men who escaped from a Maryland prison and went on a crime spree. Seminole County juries tried Carl Isaacs, Wayne Coleman, and Dungee separately and sentenced them to death for the horrific slaying of a family.¹⁶⁷

Hanging judges were those known as tough-on-crime figures who might look the other way as prosecutors cut corners, including by manufacturing all-white juries in capital cases. Typically, they were former prosecutors themselves, elected or appointed after securing death sentences for notorious crimes. Having ridden to glory for their pursuit of Old Testament-style justice, they often looked with favor on other prosecutors who wanted a similar career arc.¹⁶⁸ Walter C. McMillan had a reputation as a hanging judge.

After Dungee’s conviction was overturned due to the trial judge’s failure to deal with prejudicial pre-trial publicity, McMillan was assigned to oversee the retrial.¹⁶⁹ In 1987, when Dungee’s case returned to Seminole County, Bright and his team moved to prevent Judge McMillan from presiding over the case, alleging “invid[i]ous discrimination against poor people and black people.”¹⁷⁰ Although the issues were “somewhat painful” and “delicate,” it was necessary to probe the judge’s beliefs and past actions. Because this was “a racially sensitive” death penalty trial, they argued that it was “inappropriate for him to sit on this case.”¹⁷¹ Bright alleged that “George Dungee was called a ‘n*gger’ in Open Court in his last trial” and that nothing had been done about it.¹⁷²

Dungee’s lawyers also pointed to Judge McMillan’s membership in an all-white country club, which they insisted violated the canons of judicial conduct, as well as his past political support for Ernest Vandiver, who ran for governor in 1959 on a platform of “No, Not One”—meaning not one black child in white schools, which they believed showed the judge was prejudiced. As Bright also noted during the recusal hearing, McMillan had never appointed a non-white jury commissioner for the counties he oversaw, “not a single time,” in over twenty years on the bench. These commissioners exploited discretionary state law to underrepresent black people on juries, despite the fact that two counties within his jurisdiction were majority-black.¹⁷³ As a result, Bright argued, Judge McMillan was “very much a part of that system of white dominance.”¹⁷⁴ Indeed, to bolster structural arguments of bias, Bright insisted that the judge had helped perpetrate “systematic [mis]treatment of indigent defendants” and black people, and not merely isolated acts of discrimination.¹⁷⁵

During the hearing, Bright called Judge McMillan himself to the stand and asked about his use of racial epithets—which the judge acknowledged under oath.¹⁷⁶ Questioned about his views about Brown v. Board, Judge McMillan testified that “he [has] no quarrel with it” now, but “don’t recall what I thought then,” though “it was controversial.”¹⁷⁷ On the stand, he acknowledged that he supported Vandiver for governor, and that the candidate “was espousing a racial segregation in the schools.”¹⁷⁸ Dungee’s lawyers also alleged that McMillan had withdrawn his daughter from public school out of opposition to integration, but could not get him to admit this in court.

Despite a somewhat mixed hearing record, a surprising thing did take place that altered Dungee’s fortunes. Bright’s aggressive tactics baited the judge into committing a misstep. Judge McMillan became so enraged at his impartiality being questioned that he retained his own lawyer for the hearing on the motion to recuse (heard by a different judge). Through this lawyer, he tried to intervene in the proceeding, monitor what was going on, and influence its outcome by conferring with attorneys for the state. McMillan claimed that he was “a participant” to the proceedings because “it’s my duty and responsibility to defend the propriety of my office.”¹⁷⁹

That gambit ultimately failed when the Georgia Supreme Court decided the interlocutory appeal on the recusal motion in Dungee’s favor. Without ruling on the ultimate issue of bias, and without mentioning “race” or “discrimination” a single time in the opinion, the justices seized on McMillan’s aggressive efforts to protect his own reputation as evidence that his “impartiality might reasonably be questioned.”¹⁸⁰

Once Judge McMillan was off the case, a deal was reached to take the death penalty off the table. Dungee pleaded guilty to three consecutive life terms.¹⁸¹

SCHR pulled the same move in the retrial of Willie Gamble. Judge McMillan had presided over Gamble’s original murder trial, where prosecutors used all ten of their peremptory strikes against black jurors to create an all-white jury. That jury sentenced Gamble to die, but the Georgia Supreme Court, citing Batson, reversed.¹⁸²

Bright, Bryan Stevenson, and Clive Stafford Smith¹⁸³ did not want McMillan anywhere near the retrial. They moved to recuse him from overseeing Gamble’s case too, arguing that his previous convictions were reversed “due to violations of his constitutional rights, resulting from intentional, flagrant discrimination by the district attorney, which was routinely approved by Judge McMillan.”¹⁸⁴ In the very first paragraph of their motion, they invoked McCleskey as a command that “the person on trial must show racial discrimination in the locality and the court in which he was tried.”¹⁸⁵ Judge McMillan was just such a “decision maker” within the meaning of that case, they wrote, whose “racially discriminatory acts and encouragement and support of the racially discriminatory acts” of others already violated Gamble’s rights and would likely do so again.¹⁸⁶ The unequal imposition of the death penalty “is the result of discrimination by the District Attorney in deciding in which cases he will seek the death penalty,” they insisted.¹⁸⁷

Gamble’s lawyers turned up the rhetoric further, calling Judge McMillan a “rubber stamp racist,”¹⁸⁸ and recited a litany of facts documented earlier in the Dungee case. This time, they also argued that Judge McMillan had demonstrated lingering “antipathy” toward Bright’s staff because of “his public humiliation in the Dungee case” at the hands of SCHR lawyers.¹⁸⁹ Judge McMillan initially refused to appoint Stafford Smith to Gamble’s case for the retrial, and instead came up with a plan to solicit bids to handle the defense and appoint the lowest bidder. SCHR accused McMillan of creating “a scheme to sell off justice to the lowest bidder,” and called it further proof of his bias.¹⁹⁰ The judge had even called up two lawyers and begged them to take the case, which Bright believed was an effort to “preclude Mr. Gamble from raising the issues of judicial racism at the retrial” and block him from “moving to recuse Judge McMillan for bias.”¹⁹¹

Remarkably, Gamble’s defense team also researched Rule 11 sanctions to see how far they might go in federal court before they landed in hot water. According to Stafford Smith, what prompted this concern was that the team had drafted a civil RICO lawsuit against the judge, where violations of civil rights laws would serve as the predicate offenses. In the end, they wisely opted not to file it.¹⁹²

At all events, the full-court press via state court proceedings turned out to be enough. Judge McMillan eventually stepped off the Gamble case. The prosecutor, seeing that Judge McMillan would not oversee the retrial, eventually resolved the case with a plea deal guaranteeing a life sentence.

III. MCCLESKEY AS A SWORD

Although they publicly sought to deny McCleskey moral legitimacy and constitutional validity outside of the courtroom, inside the courtroom SCHR lawyers deployed the decision as a sword. They did so in several ways: (1) to justify their efforts to build a record of discrimination by the local power structure on the basis of race and poverty of the defendant and social worth of the victim; (2) to expand their structural critique of unequal justice to entire criminal legal systems on a county and/or judicial circuit basis; (3) to piggyback on those bias claims and request evidentiary hearings and documents so as to counteract the position of information disadvantage experienced by criminal defendants; and (4) to justify recusal of any judges and prosecutors found responsible for unconstitutional or unethical behavior.

Uncertain of their chances of success or when their window of opportunity would close, SCHR lawyers pushed their “McCleskey motions” as hard and as far as they could to maximize the probability of judicial consideration of their motion, pressure the state’s lawyers to rethink their choice to pursue a death sentence, and to draw attention to issues of race and poverty.

A. Horton v. Zant

After Amadeo’s case, SCHR lawyers learned to build on findings of prosecutorial misconduct to go after DA Joe Briley’s other cases. They decided to represent Jimmy Lee Horton, a black man under a death sentence who was also prosecuted by Briley. This time, Bright and his staff found an ingenious way to go after Briley’s use of peremptory challenges to remove prospective black jurors.¹⁹³

Horton and his co-defendant, Pless Brown, Jr., had been arrested for burglarizing an apartment and killing the companion of the homeowner during a shootout when the two came home and surprised them. The dead man turned out to be Don Thompson, the District Attorney of Macon Judicial District, Georgia.

Joe Briley was brought down specially from Okmulgee Judicial District to secure death sentences against the perpetrators. Brown, who wound up with a mixed-race jury, received a life sentence. By contrast, Horton was sentenced to die by an all-white jury. His court-appointed lawyers did no investigation and presented no mitigating evidence during the sentencing phase. In closing remarks to the jury, one of his attorneys stated that his own client was “a worthless, despicable human being” and praised the prosecutor’s argument.¹⁹⁴

Because Briley had such a long track record of aggressively seeking death sentences and scoffed at charges that capital punishment practices were racist, SCHR brainstormed ways to dig more deeply into his jury strikes over the course of his career. Their success in doing so created a template for action in subsequent cases.¹⁹⁵

1. A Mini-McCleskey Hearing

Judge Wilbur Owens of the Northern District of Georgia was assigned to review Horton’s habeas petition—the same judge who had granted relief in Amadeo’s case based on the jury-rigging violation. Judge Owens scheduled an evidentiary hearing on Horton’s petition and ordered the state to engage in “expeditious discovery.”¹⁹⁶ At that time, before enactment of the AEDPA,¹⁹⁷ it was still possible to get evidentiary hearings on habeas petitions. Only later would federal judges increasingly deny claims based on the papers alone.

On October 18, 1989, Bright handled the live hearing.¹⁹⁸ He called Briley to the stand to authenticate the jury-rigging memo. The memo, which had led to Amadeo’s conviction being overturned in the U.S. Supreme Court for jury manipulation,¹⁹⁹ now became evidence in Horton’s case, as Bright argued that the document ought to be treated as proof that the prosecutor had a history of racially discriminatory behavior. Bright wanted the judge to infer that Horton’s case, too, was tainted by Briley’s participation.

McCleskey v. Kemp hung over every facet of this pre-trial hearing. “The issue is who is the person behind this discrimination?” Bright reminded.²⁰⁰ He was concerned about Justice Powell’s insistence in McCleskey that legal theories of inequality must be traced to specific perpetrators. If the proof of discrimination was not in the record, if the judge did not find that someone in particular was responsible for purposeful discrimination that occurred in his client’s case, then Horton could not benefit even if there were racial disparities.

The prosecutor’s past misconduct was also useful for attacking his credibililty in other settings. “Your Honor, Mr. Briley in case after case was resisting jury challenges, taking advantage of the fact that people weren’t prepared for jury challenges,” Bright argued.²⁰¹ “[A]ll of that flies in the face of this testimony that in this one particular case he was advising the judge that he ought to put the full number of blacks and women in the pool.”²⁰²

“You’re not going to win or lose based upon that one incident,” Judge Owens said. “The pattern of years, all these cases” was what mattered.²⁰³

Bright turned to a study compiled by SCHR staff on Briley’s juror strikes over his career. In the months leading up to the hearing, the staff hunted down old case files, trying to reconstruct the twists and turns of jury selection in the cases tried by Briley across eight different counties since 1974. Three of the counties did not retain the records, but they successfully charted 25 capital and 159 non-capital cases of Briley’s. They then had to cross-reference that information with county voter registration lists to identify each juror’s race.²⁰⁴

Displaying the document in his hand, Bright asked Briley: “In 1977 you also tried the Walker case in Jasper Country . . . And in that case you used seven of your peremptory strikes against seven black people; is that correct?”

“If that’s what the record shows,” Briley shrugged.

“You’re not able to recall any reasons why you struck those people?”

“No sir,” Briley responded.

Bright said to Briley: “[I]t is your testimony that the fact that all seven happened to be black people is just coincidental?”

“Yes sir.”

“In the Finney case in Jones County you used seven of your strikes against black people?” Bright inquired. “Are you able to recall any of the reasons for that?”

“No sir,” Briley testified.²⁰⁵ His strategy as a witness was to deny any memory of why he rejected so many black citizens as prospective jurors and hope that the silence in the record would be enough to satisfy tolerant judges.

After leading him through the exhibit and getting Briley to admit to the disturbing pattern of decisions to excuse black jurors from his trials over many years, Bright got Briley to admit that he used nine out of ten strikes against black jurors in Brown’s case. And in Mr. Horton’s case, he also used nine out of ten strikes against black jurors.

On cross-examination, the state’s lawyer, Paula Smith, asked Briley to describe the process of jury selection in Georgia. He explained that “[y]ou’ve got to have all twelve jurors to vote for the death penalty because if one of them votes against the death penalty . . . [i]t is a life sentence. So it takes a perfect score to get a death penalty.”²⁰⁶ But his response seemed only to underscore the connection between the jury’s demographics and his prediction of trial outcomes rather than rebut the strong pattern of apparent discrimination to achieve a desirable jury composition.

On redirect, Bright tried to underline the racial patterns. “You used ninety-six of your hundred and three strikes, ninety-four percent of your strikes, against black people. Do you know why these reasons you have tend to fall so heavily upon black people?” Briley could not provide an explanation.²⁰⁷

When Briley had a case with a black defendant and black victim, he exercised seventy-three of eighty-six jury strikes against black jurors. Yet when it came to cases involving white defendants, the prosecutor did not exhibit the same enthusiasm for excluding black jurors. In such cases, Bright pointed out, “you only used a third of your strikes against blacks.”

Next, Horton’s lawyers called Gary Liberson, a PhD in mathematical statistics to the stand.²⁰⁸ Liberson testified that he examined Briley’s juror strikes over many years on a county-by-county basis to see whether they were “consistent with the ratio or percentage of blacks in the population for that particular county.” What was the probability that Briley’s decisions reflected “just the random selection of jurors” who “just happened to be black?” He answered that “there was about one chance in a hundred thousand that that would have been so.”²⁰⁹

As to Briley’s comparatively less vigorous use of juror strikes in cases with white defendants, it was also roughly “one chance in a hundred thousand” that the pattern was a random one. On cross-examination, the state’s attorney got Liberson to admit that “the most your analysis would reveal is that the numbers do not show what one would expect if the prosecutor struck at random.” She tried to suggest that any number of subjective factors not considered by the expert could explain the disparity. In response, Liberson said that even if there were some other set of components that were strongly associated with race, “they would dampen the results” but not “make the results non-significant.”²¹⁰

The state’s lawyers called to the stand Joseph Katz, the very statistician Georgia had used in the McCleskey case to rebut the Baldus study. Katz disputed Liberson’s conclusions but did not offer any alternative study or explanation, saying “some things don’t easily reduce to numbers.” Under cross-examination, he conceded that Liberson’s methods were “appropriate” and that he did not try to replicate Liberson’s findings. He also acknowledged the probability of Briley’s pattern of strikes being random was “very low.” In fact, he agreed that Liberson’s finding of racial disparity to be “statistically significant” because “[i]f you were a black defendant Mr. Briley was more likely” to strike black jurors.²¹¹

After all the witnesses and exhibits were entered into the record, Bright addressed Judge Owens. What the evidence showed was that “Mr. Briley has a remarkable history of striking black people from juries.” In capital cases “[N]inety percent of the time he used his strikes against black jurors.” The “only time he changes,” Bright argued, “is when he has white people on trial.”²¹² Summing up, Bright urged Judge Owens to find that when he picked his client’s jury, he “deprived members of Mr. Horton’s race of participation in the judicial process.”²¹³

During her remarks, Smith acknowledged that Horton had shown that the state “has struck a higher proportion of black jurors than white jurors,” but said that still did not violate the Constitution. The petitioner’s burden under Swain was to prove “historic systemic exclusion,” she insisted.²¹⁴

On April 12, 1990, Judge Owens denied the writ. On the most promising claim, Judge Owens concluded that Horton did “not show that the prosecuting attorney has historically and systematically excluded blacks from serving on trial juries.” He made quick work of Horton’s remaining claims, leaving his conviction undisturbed.²¹⁵

2. The Eleventh Circuit Validates Rebellious Localism

Horton’s Eleventh Circuit brief put the jury issue front and center. “Swain does not require a defendant who has been victimized by the prosecutor’s racially motivated abuse of peremptory challenges to show . . . that the prosecutor had always successfully obtained all-white juries in the past,” his legal team argued. Instead, “the central question is purposeful discrimination.” And on that issue, the actual “history of Mr. Briley’s practices reveals his intent and strips his anti-black peremptory challenges at Mr. Horton’s trial of any presumption of propriety.”²¹⁶

On September 3, 1991, the Eleventh Circuit issued a unanimous ruling reversing Judge Owens.²¹⁷ Judge Frank Johnson first took up the issue of peremptory challenges. Although the Supreme Court in Batson made it easier for a defendant to challenge jury strikes, Horton could not rely on that decision because his trial took place before that case was decided. Instead, he was bound by Swain, in which a black man was convicted of rape by an all-white jury after a prosecutor used his peremptory challenges to remove all the black citizens from the pool.²¹⁸ Swain also showed that there had never been a single black person allowed to serve on a criminal trial in Talladega County, Alabama since 1950, even though the county was 26% black.²¹⁹ Yet the fact that the jury panels were consistently underrepresented at 10–15% was deemed by the Swain Court not enough to make out a violation of the Equal Protection Clause. No one is entitled “to demand a proportionate number of his race on the jury which tries him,” Justice Byron White wrote.²²⁰ A defendant is entitled only to a trial free of intentional discrimination.

Justice White ruled in Swain that the fact that in a single trial “all Negroes were removed from the jury” was not enough to overcome the presumption that a prosecutor is doing so “to obtain a fair and impartial jury.” The only way to strip a public servant of the presumption of good faith was to present proof that “the prosecutor in a county, in case after case, whatever the circumstances, whatever the crime and whoever the defendant or the victim may be, is responsible for the removal of Negroes who have been selected as qualified jurors by the jury commissioners.”²²¹

Over the years, Eleventh Circuit applied Swain, already a demanding standard, in exacting fashion. As Judge Johnson pointed out in Horton’s case, the court had in the past rejected claims even when a prosecutor struck every black juror in six trials during a single week.²²² Luckily, Horton’s lawyers had met that high burden. “Mr. Briley’s hardball tactics clearly do not comport with the prosecutor’s obligation to ‘do justice,’” Judge Johnson admonished. It was the first time the Eleventh Circuit had ever found a Swain violation in a Georgia case.²²³

Citing Amadeo, Judge Johnson also emphasized Briley’s role as “author of a now infamous memo designed to underrepresent blacks, women and all individuals 18-24 years old” in Putnam County’s juries. As for Briley’s new tale “that he should not be morally culpable” because a now-deceased judge had instructed him to manipulate the jury pool, “even if we were to assume Mr. Briley’s version of the story was true, we cannot condone his behavior.” The “mere fact that a judge orders a prosecutor to engage in unconstitutional discrimination on the basis of race and sex does not make the behavior right.” He added: “A prosecutor has a duty to ‘do justice’ and . . . not engage in the subsequent cover up.”²²⁴

After pointing to evidence of Briley’s past misconduct, the Eleventh Circuit rejected the state’s argument that Swain’s strong presumption of regularity could not be defeated absent smoking-gun evidence in the prosecutor’s notes or damning testimony. The panel then turned to the pattern of Briley’s jury strikes over time uncovered by SCHR investigators. Judge Johnson embraced the weight of their findings: “[B]etween 1974 and 1981, Mr. Briley exercised 1,580 peremptory strikes” across three counties, 70% of them against black jurors. In capital cases that percentage ticked even higher: 79% to remove black jurors without explanation (184/234 strikes). When a murder trial involved a black person charged with killing a white person, Briley exercised 96 out of 103 strikes against black jurors. The panel was impressed with Dr. Liberson, twice citing his findings that the likelihood Mr. Briley exercised his peremptory challenges for race neutral reasons “was less than 1 chance in 100,000.”²²⁵ The panel made no mention of the state’s expert, rejecting his testimony implicitly.

Judge Johnson dismissed the state’s explanation for these racial patterns: “courts cannot make a blind leap of faith that there exists some set of legitimate factors which correlates one-to-one with the race of the venire members.” But even a prosecutor who acts with a “mixed motive”—where race is one among other factors in striking black jurors—is violating the Constitution.²²⁶ “From Horton’s statistics,” the judges said, “we cannot help but conclude that race was a very significant factor in Mr. Briley’s decision-making process.”²²⁷ Racial discrimination was believable in this context in part because, as the panel observed, “in our society interracial crime is treated differently than other crimes.”²²⁸

A prosecutor’s past violation of the Equal Protection Clause in one case finally had actual consequences in subsequent cases. Moreover, the mini-McCleskey strategy had worked. Despite McCleskey, or ironically perhaps because of it, the Eleventh Circuit embraced statistical evidence presented on a smaller scale. It’s not obvious that the statistical evidence was more scientifically sound than the Baldus study, but the bite-sized sample, involving one person in power across time, appealed to judges’ desire for simpler stories about causation and evidence about racial discrimination that could be attributed to specific individuals. Doubling down on equality, subverting doctrine, and scaling down cause lawyers’ targets had paid off.

This was a resounding legal victory that exposed prosecutorial misconduct, racial inequality, and the subpar quality of justice for poor Southerners. The media called it “yet another rebuke” of Briley “for keeping blacks off juries.”²²⁹

Faced with the prospect of having to retry the case after all these years, Briley agreed to a plea deal that assured a life sentence for Horton. Success in Amadeo had created legal precedent on trial fairness and racial equality, and that precedent, in turn, had been successfully leveraged for Horton. Additionally, the Eleventh Circuit’s surprising ruling now gave cause lawyers a useful weapon. In theory, Putnam County’s jury-rigging practices could be leveraged to force a second look at other cases—if the issue had been preserved or else new evidence can overcome procedural obstacles.

B. State v. Brooks

William Anthony Brooks, an African American man, was charged with the abduction, rape, and murder of a white woman, Carol Jeannine Galloway. The victim’s mother saw her climb into Brooks’ car in front of her home, and her body was later discovered behind an elementary school. An all-white jury in Columbus, Georgia sentenced Brooks to die in the electric chair after Mullins Whisnant, Pullen’s predecessor, told jurors that Georgia’s crime rate had risen since 1964, the date of the last execution, and that “[w]e didn’t have this kind of murder . . . when we had capital punishment.”²³⁰

At sentencing, Whisnant invoked “the war on crime” as a reason to deal with Brooks harshly and told jurors that it would be more expensive for taxpayers to imprison Brooks than kill him. Whisnant urged jurors to think of themselves as “soldiers” in the battle against a crime wave: “[Y]ou can tell William Brooks, and you can tell every other criminal like him, that if you come to Columbus and Muscogee County, and you commit a crime . . . you are going to get the electric chair.”²³¹

The Eleventh Circuit found these tactics disturbing. A panel called out the prosecutor for inviting the jurors to “forego an individualized consideration of Brooks’ case and instead choose execution merely because he was part of the broad ‘criminal element’ terrorizing American society.”²³² Bright and Kendall, who took on Brooks’ appeal, emphasized Whisnant’s improper political rhetoric inside the courtroom, but the Eleventh Circuit ultimately found these remarks amounted to “harmless error” because of the overwhelming evidence of guilt. Nonetheless, the panel overturned Brooks’ conviction for a different reason: the trial court mistakenly instructed jury members that they could presume every murder to be “malicious.” Doing so improperly shifted the state’s burden of proof to the defendant.²³³

Brooks had been tried in 1977 before an all-white jury and sentenced to death even though black people made up 30% of the community. Bright believed that race had played a significant role in Brooks’ case—and not just because of Whisnant’s conduct. He felt that John Henry Land, the judge who presided over Brooks’ trial, gave him two uncaring lawyers who did little to protect him from the state. Land’s father, Aaron Brewster Land, had also participated in two lynchings in the area when John Henry was just a boy. First elected in 1964, Judge Land himself publicly acknowledged long-held segregationist views. He had even belonged to the States’ Rights Council of Georgia, Inc., organized to preserve “the traditional establishment of segregation in both public and private places” and oppose Brown v. Board, which the group derided as “the Thurgood Marshall Plan,”²³⁴ though Land later renounced his past support for segregation.

His conduct as a proud “hanging judge,” particularly in high-profile criminal trials, suggested something different. The more that Bright learned about Judge Land’s handling of the first trial, the more he became convinced that Judge Land had helped carry out a “legal lynching” of Brooks.²³⁵ Over the objections of the jurors, Land had permitted cameras in the courtroom for the sensational cross-racial murder trial—a first in Georgia’s history.²³⁶ Just by reading the transcripts of jury selection, Bright could guess the race of the jurors. “I could tell by the way they treated those eight people which ones were the blacks because they would lead them into answering the questions in a way that got them excluded from the jury,” Bright recalled.²³⁷

During voir dire, prospective jurors who acknowledged hearing about the high-profile killing in the news were asked follow-up questions. Judge Land and the prosecutors would lead the white prospective jurors into saying that they could put aside detailed facts they already knew about the case and decide the case based on the evidence. With black jurors, they would lead them into saying they had already formed an opinion about the case, even when what they remembered from pre-trial coverage was vague. Judge Land’s supervision of jury selection in Brooks’ original trial left few black jurors in the pool, who were easily removed by prosecutors through peremptory challenges.²³⁸

1. Recusing All the Judges and Prosecutors of a Circuit

Bright and Kendall remained counsel for Brooks’ retrial, adding recent Yale Law School graduate Ruth Friedman²³⁹ as well as Columbus attorney and state senator Gary Parker. Because Columbus had the “dubious distinction” of being an outlier—having “condemned more people to death since 1973 than any other place in Georgia,”²⁴⁰ Bright felt that they would have to escalate their tactics to match county officials’ strong push for the death penalty. When the case returned to Muscogee County, they filed a 23-page motion to recuse Judge Land because of his “intentional racial discrimination” and requested that the case be assigned to a judge outside of the Chattahoochee Circuit.²⁴¹ Brooks’ lawyers added a claim about “bias[] against poor persons,” citing the judge’s own public comments calling indigent people in his courtroom who needed counsel “freeloaders.”²⁴²

Although he claimed it had nothing to do with the substance of the motion, Judge Land eventually stepped aside, saying that “the fact that I did try it before might give an appeals court something to hang their hat on.”²⁴³ On March 24, 1988, Bright then moved to recuse Judge Rufe Edwards McCombs, the next judge assigned to Brooks’ case, and renewed the defense request that the case be moved outside the circuit entirely.²⁴⁴ In that same motion, they insisted that none of the judges in the circuit could be impartial given that under McCleskey v. Kemp their client “must show the discriminatory intent of all key ‘decision makers’ ” and that the key figures “in this case are friends, colleagues and associates who are a part of the Court and judicial circuit” on which Judge McCombs and others serve.²⁴⁵ Judge Land, the chief judge of the circuit, “both participated in discrimination against Mr. Brooks and allowed it to take place before him in the previous prosecution of this case.”²⁴⁶ Furthermore, all of these judges regularly conferred with Judge Whisnant, who originally prosecuted the case against Brooks. Bright insisted “that as district attorney Mullins Whisnant discriminated against black people in his decisions to seek the death penalty and that he sought the death penalty against William Brooks as part of those discriminatory practices.”²⁴⁷ Now that Whisnant was a judge on the circuit, his colleagues could not be trusted to handle accusations of racial bias against him impartially. The trial should be moved or Brooks should be given an out-of-circuit judge.

The defense also signaled that they would attempt to show that the current District Attorney William Smith, who happened to be “a candidate to join Judge McCombs on the bench,” had merely “continued the discriminatory practices of his predecessor,” as assistant district attorneys “have sought to exploit these discriminatory practices to get the white vote in the current and past elections.”²⁴⁸ Whoever ultimately presided over the trial would also have to evaluate evidence that other officials and employees of Muscogee County “have conspired to deny black people full-fledged participation on jury commissions, on the master jury lists, on grand and traverse juries, and in positions of employment in the clerk’s office, the offices of the judges . . . resulting in discrimination against black defendants who come before the Court.”²⁴⁹ Bright argued that “[t]he appearance of a conflict of interest will be created” when Judge McCombs—or frankly any other judge who worked closely with Judge Land in the circuit—is called upon to determine Mr. Brooks’ McCleskey claim.”²⁵⁰

Brooks’ lawyers added another motion demanding a public hearing on their recusal motion, as well as discovery of any evidence in the possession of the District Attorney as well as any judge or court personnel.²⁵¹ Bright repeatedly deployed McCleskey offensively: “Where the state seeks to utilize society’s ultimate sanction, it has an overriding obligation to provide a fair forum. In the vernacular of McCleskey, its decisionmakers must stand beyond repute. Mr. Brooks has filed a motion claiming that Muscogee county decisionmakers fail this test.”²⁵²

The next step involved trying to hold the district attorney’s office responsible for past discrimination by blocking their participation in subsequent cases. Seeking maximum media coverage of their racial bias claims, Bright followed up with a motion to disqualify the entire Muscogee County District Attorney’s office.²⁵³ “The current occupant of that office is one whose political identity is based almost exclusively on the death penalty,” the motion stated. “The death penalty was the major issue in his campaign for District Attorney.”²⁵⁴ That public posture meant that prosecutors were violating the “due process and other fair trial rights” of the accused by failing to consider legal reasons for whether to seek the death penalty—that is, “the unique circumstances of the offender and the crime.”²⁵⁵ In fact, whether out of improper “personal or political” interests or “loyalty” to one part of the community over another, the district attorney “has refused even to consider a sentence of less than death in this case.”²⁵⁶

It was a long shot, but Judge Whisnant, who handled the case when he was a prosecutor, ultimately decided to recuse himself. Eventually, Brooks’ team got what they wanted: the case was assigned to Judge Hugh Lawson from the Oconee Judicial Circuit.²⁵⁷ That key switch in judicial personnel opened the possibility for the defense to ratchet up rebellious localism even further.

Bright and his staff immediately moved to quash the original indictment against Brooks from 1977, arguing that it was still tainted by the constitutional defect identified in the Amadeo litigation. The district attorney wisely chose not to contest that motion. Instead, he resubmitted the case to a grand jury in 1987 and received another indictment. Brooks’ lawyers then objected to the new grand jury proceeding as “fundamentally unfair” because District Attorney Doug Pullen gave a campaign-style speech during his presentation.²⁵⁸ This motion was denied.²⁵⁹

2. Structural Racism Claims

Before a new judge, Brooks’ team filed multiple motions to block the death penalty, making a variety of equality arguments. All told, Bright explained to Judge Lawson, “we come out with about fifteen issues approximately that are worthy of the Supreme Court of Georgia looking at.”²⁶⁰ In late September 1990, Judge Lawson wavered, asking Pullen whether he “feel[s] so absolutely certain about the State’s legal position on all of these issues that you are prepared to spend the time and the money to have the trial and run the risk that any of these could make the train jump the track when the trial is over?”²⁶¹

One defense motion sought “to bar the death penalty because of racial discrimination.”²⁶² A second sought to “bar the death penalty because of victim-impact evidence.” A third motion tried to stop capital punishment from being inflicted because it “is sought based on worth and status of victim.” A fourth asked for a preliminary ruling to “bar any prosecutorial misconduct . . . that has been sort of a hallmark of capital cases in the Chattahoochee Circuit.”²⁶³ This last motion did not just try to stop certain kinds of racist litigation practices during Brooks’ retrial, but also sought to bar all future capital prosecutions in the jurisdiction. According to Bright, the constitutional violations ran deep:

[Y]ou can take the first capital case that Judge Whisnant tried when he was district attorney and you can look at the closing argument in that case, which was basically the kind of argument you would make on the courthouse stairs at a lynch mob, not the kind you make in a courtroom to a jury. And you can look [at] an argument Mr. Pullen made the last time he argued a case and you’ll find all those elements. They go right through Whisnant’s arguments to Judge Smith’s arguments and to the arguments this present day, and we suggest that the Court has to take action to stop it.²⁶⁴

Bright alleged that the District Attorney’s office had a practice of racial discrimination that encompassed not just jury selection tactics but also abuse of charging discretion and racially inflammatory oral advocacy. He wanted Brooks’ trial to become a vehicle for documenting these overlapping practices that infected all capital cases handled by the office. “Racial discrimination in Muscogee County in its criminal justice system, and in the practices of the District Attorney’s office, is so deep-rooted and pervasive that it is impossible to ensure that such discrimination will not play a determinative and unconstitutional role in the outcome of Mr. Brooks’ trial,” they argued in their memorandum of law.²⁶⁵ “Thus, under McCleskey, this Court must prohibit the State from seeking a sentence of death against Mr. Brooks.”²⁶⁶ Quoting Justice Powell’s own words, they insisted that “any evidence which suggests that the ‘risk [of racial discrimination is] constitutionally acceptable,’ McCleskey . . . is valuable and probative” on the question of whether a prosecutor has abused his prosecutorial discretion.²⁶⁷ Recounting the history of racism in the state and county, the legal memorandum also invited judges to subvert the original McCleskey decision by linking Justice Brennan’s dissent in that case to other cases that documented discrimination against black residents of Georgia.

Once the proof was tendered and the patterns shown, Bright demanded an injunction against the prosecutor’s office and anyone who might be involved in carrying out a death sentence:

We will show that, first, when Judge Whisnant, then District Attorney Whisnant, was district attorney for a number of years here, his right-hand person was Bill Smith. During that time Mr. Pullen came into the office. Judge Whisnant, only three months after getting the death penalty for William Brooks in the first televised trial in Georgia history, went on to become a judge. Judge Smith took over as district attorney. Mr. Pullen moved up to being the chief assistant. . . . Judge Smith tried the Carlton Gary case, the silk-stocking stranglings. He went on to his judgeship. Mr. Pullen moved into the district attorney’s office . . . it’s been a history with a lot of racial discrimination.²⁶⁸

The decision whether to seek the death penalty has “been made primarily by three white men over the last 17 years: Judge Whisnant, Judge Smith, and Mr. Pullen . . . those three people have really decided which 24 people would be subject to capital cases or not.”²⁶⁹ During argument on the motion, Bright argued that their evidence of racial bias would be stronger and more direct than that laid out in McCleskey itself. “I want to make it clear that this is not an elaborate multiple-regression analysis that we’re going to be putting on.” Rather, “[i]t’s a very straight-forward” set of exhibits demonstrating the prosecutor office’s biased charging decisions.²⁷⁰

As for the motion seeking to replicate McCleskey’s findings on a smaller scale, Bright argued that the District Attorney’s office improperly considered race in deciding whether to seek death. He noted that “the three capital cases pending in this court,” including that of Brooks, “all involve black people charged with murders of white people.”²⁷¹

In advance of a public hearing on these motions, Parker and Rev. Lowery held an anti-death penalty event at the Fourth Street Baptist Church in Columbus. The two men told the citizens assembled that race, not the nature of the offense, was “the most significant criteria” for the death penalty in the area.²⁷² “It’s wrong to teach our children to be vindictive rather than preventive” Rev. Lowery told the crowd. “It’s wrong to teach . . . that white life is more valuable than black life.”²⁷³ After the event, the two men paid a visit to Brooks’ jail cell to highlight popular complaints of local injustice. Their explicit goal was to marry harm reduction in court and abolition outside the courtroom: “to make people (in Columbus) aware of the inequities and tremendous cost inherent in this system” of killing their own.²⁷⁴ The media marveled at SCHR’s strategy of rebellious localism, noting that it involved a “dramatic” turning of the tables to focus “on the prosecution’s motives” because of McCleskey v. Kemp.²⁷⁵

Pullen denied racism in the district attorney’s office and bristled at being called “nasty, nasty names in front of the courthouse.”²⁷⁶ In response to the motions, he demanded access to any raw data, any “information that went into this computer that led to this so-called study.”²⁷⁷ He lashed out at abolitionist lawyers, saying “they will do any deed, tell any lie, hurt any cause, nation or individual in order to achieve the end to capital punishment in this country.”²⁷⁸ Otherwise, Pullen said in court, “Let the games begin.”²⁷⁹

At one point, Bright and his staff questioned Pullen and two other former prosecutors, including Judge Whisnant, under oath. Asked about their charging decisions, the prosecutors recited exactly the same race-neutral criteria, that is, whether there were aggravating factors to justify a death sentence. Yet Brooks’ team tried to rebut their testimony as to their charging decisions by putting on relatives of black homicide victims who testified that the investigation and prosecution of their cases were not pursued with the same kind of diligence as crimes against white victims. While black citizens were the victims of 65% of homicides in the county, “almost all of the death penalty cases that have been tried have involved white victims, 20 out of 24.”²⁸⁰ These family members, “their voices quavering with emotion, described the district attorneys’ callous disregard for their cases.”²⁸¹ They said that the district attorney’s office often did not even stay in close contact with them before resolving cases. One African American woman learned that her daughter’s killer had already been sentenced when she called the police to see when the trial would be. Another witness, also black, testified that the district attorney’s office allowed her husband’s killer to plead guilty without consulting with her beforehand. By contrast, when Brooks offered to plead guilty and accept life without parole, Pullen consulted the victim’s family before deferring to them and refusing a deal.²⁸²

At one point, Pullen tried to stop the testimony from the family of black murder victims. He stood up and conceded that victims’ families “had been treated callously in the past” and that as the new district attorney, he was trying to make amends.²⁸³ But the judge permitted the defense to proceed.

During a remarkable courtroom exchange, Bright objected to the judge’s initial ruling that admissible evidence as to racism within the county’s legal system would be restricted “to the last 18 months”—only the period that Pullen had been district attorney.²⁸⁴ But Bright replied that so sharply limiting the historical proof would be tantamount to doing “what we have done for years in the South,” which is to “wear blinders to sort of avoid really focusing and dealing with the problem of race and racial discrimination in the society.”²⁸⁵ It would be “like saying that if there’s a change in leadership of the Ku Klux Klan we can’t assume that that organization is a racist organization because we can’t look back at the church bombings and all that because that was when J.B. Stoner headed up the organization but now someone new has taken over.”²⁸⁶ Instead, Bright advocated a holistic test: looking at “the totality of the facts to see to what extent the history influences the present.”²⁸⁷ The evidence introduced by SCHR sought to portray “a larger historical context of discrimination against African-Americans in Georgia and Muscogee County” and urged that the trial of Brooks “be viewed in the context of racial violence against black people in Muscogee county and in Columbus,” what Bright called “cradle-to-grave discrimination . . . that includes and is most pernicious, in fact, in the criminal justice system.”²⁸⁸

Judge Lawson shrewdly allowed Brooks’ defense a wide berth to introduce what they wished into the record, but not everything could be live testimony. At one point, Bright was permitted to proffer the testimony of a Columbus native on the history of local racial violence, although Judge Lawson ultimately decided the testimony was not directly relevant to the motions. As Bright explained, Bill Winn, who wrote for the Columbus Ledger-Inquirer, would explain “the lack of trust of the criminal justice system” among black citizens as a result of “the uninterrupted history of racial violence inside and outside the criminal justice system in this community.” He would have spoken about the 1912 lynching of a 14-year-old “on the front steps of the courthouse here in Columbus,” as well as the lynching of a white proponent of racial equality that “caused so much racial unrest that black people in the community threatened to burn Columbus down.”²⁸⁹

Bright then turned to specific evidence of historic and systematic underrepresentation of minorities on Muscogee County juries. Bright asked Judge Lawson to take judicial notice of several decisions: a 1966 Fifth Circuit ruling called Vanleeward v. Rutledge²⁹⁰ “that the jury pools in Muscogee county discriminated on the basis of race”;²⁹¹ as well as Peters v. Kiff,²⁹² a 1972 ruling in which the U.S. Supreme Court reversed a sentence from Muscogee County, agreeing that even white defendants are harmed when a county excludes black citizens on a systematic basis.

“An all-white country club is a terrible thing,” Bright argued, “but an all-white jury is worse because it denies people participation in the judicial process.” He hammered the democratic deficits uncovered through the legal process.²⁹³ Over half the capital cases in the county, including that of Brooks, “have been tried with all white juries.”²⁹⁴ Bright introduced “the entire record from the first trial”²⁹⁵ against Brooks and told Judge Lawson that what happened was “a legal lynching,” which he defined as a “perfunctory criminal trial[]” that accomplishes the “same result” as an extralegal act of justice “without the unseemly way of doing it by just simply taking a person out and hanging him up.”²⁹⁶ According to Bright, who laid out how one racist practice exacerbated another,

The outcome of this case was a foregone conclusion. All the publicity; . . . the all-white jury; the exclusion of jurors on the basis of race; the closing argument, which . . . appealed to passion and racial prejudice; . . . a perfunctory trial broadcast to the community; and Brooks was off to the electric chair; and, of course, Judge Whisnant was off to the bench.²⁹⁷

3. Race-Based Jury Strikes Over Time

Brooks’ team lost the bulk of their pre-trial motions, but Bright persuaded Judge Lawson to order discovery on the racial discrimination claims. This momentous turn of events gave them time to develop a record and the opportunity to show that since the death penalty was reinstated in Gregg, prosecutors for the Chattahoochee Judicial District had tried 27 capital cases, with 21 involving white victims. The sample size was not large, but it also was not paltry. Nineteen people wound up with a death sentence.

Even more damning were the patterns in the office’s juror strikes over the years. In capital cases, prosecutors exercised peremptory challenges 59 times (85.5%) against black jurors, and only 10 times (14.5%) against white jurors. SCHR proved that these tactics led to eight black defendants tried for capital crimes in front of all-white juries: Joseph Mulligan, Jerome Bowden, Jamie Lee Graves, Johnny Lee Gates, William Brooks, and William Lewis.²⁹⁸ All eight cases involved black defendants, with seven of the eight cases involving black defendants and white victims.

Ruth Friedman, Mary Eastland, and several investigators and interns spent the months leading up to Brooks’ retrial going through the case files of the District Attorney. “We went through every file, coding them” for every factor that could conceivably be relevant to understanding prosecutorial practices such as prior offenses, the number of victims, and so on.²⁹⁹ This amounted to some 10,000 pages of documents in the county’s files. Denying racial bias, Pullen had said he sought a death sentence only when aggravating factors existed, and so they went about testing whether this was true or whether, instead, the race of the defendant or victim could be isolated as a motivating factor in a prosecutor’s decisions.

Just as with the Horton case, SCHR hired an expert to examine the data and try “to show that race was the constant.”³⁰⁰ But this time, they broadened their net to encompass all the prosecutors from the office. After examining the data, Dr. Michael Radelet testified that “those who kill whites are 5.9 times more likely than those who kill blacks[s]” to have the death penalty sought against them by the district attorney’s office.³⁰¹ But Pullen’s explanations, such as that some homicides are accompanied by an additional felony such as robbery, simply “does not explain this racial disparity.”³⁰² Neither did the degree of relationship between perpetrator and victim (even though more people who kill strangers have the death penalty sought against them).³⁰³ Other details supported Brooks’ motion: “given a female victim, those who kill whites are 5.1 times more likely to have the death penalty sought than those who kill a black female.”³⁰⁴ The pattern held when comparing black male victim versus white male victim: “those who kill white males are 11 and half times more likely to have the death penalty sought than those who kill black males.”³⁰⁵

As for the state’s jury strikes over time, Radelet testified that there was less than 1 in 1,000 chance that Pullen’s office was striking black jurors at such a high rate randomly. Pullen admitted being out of his depth, saying he was “not familiar with statistics.”³⁰⁶ During cross-examination of Radelet, Pullen tried to suggest that the expert was compromised because he appeared at defense lawyers’ press conference and handed out sheets with details of his research, but Radelet insisted that he was not morally opposed to the death penalty and merely had an “academic” interest in how it was enforced.³⁰⁷ Pullen strongly implied that Radelet did not include all factors that went into their charging decisions, such as the ages of perpetrators and victims, but Radelet replied that he took into account the most likely ones. When Pullen tried to get Radelet to say that the Baldus study had been rejected by judges, he retorted: “Not my reading of McCleskey. I think the Supreme Court made it quite clear that they accepted that study” and “[t]hat study has received some very prestigious awards.”³⁰⁸

At one point, Pullen lost his cool: “[Y]ou’re calling me and my two predecessors racists.”³⁰⁹ Parker objected, saying that “he has never said that the evidence indicates that he is a racist. He says the evidence raises a strong suggestion of racial discrimination in the application of the death penalty in this circuit.” Judge Lawson sustained the objection.³¹⁰

Pullen moved on to inquire why Radelet chose not to focus on the race of defendants, and Radelet explained that Bright asked him “to focus on race of victim.”³¹¹ This amounted to an effort to focus on one aspect of the Baldus study (racial disparities in cross-racial killings), and to try to replicate it on a more intimate scale. Radelet acknowledged that the raw numbers showed that of the 45 capital cases they were discussing, 23 defendants were white and 22 were black.³¹² Radelet pushed back, saying that “the lesson that we have learned from this research project and from many others done over the last decade is that if we look at defendant’s race alone, that creates a totally misleading picture of the effect of racial variables on the imposition of the death penalty.”³¹³ Other factors either could not be quantified or were not for purposes of Radelet’s study, such as strength of a case, criminal history, whether there was provocation, degrees of premeditation, and defendant’s state of mind.³¹⁴

After this hearing, the NAACP called a press conference to attract media attention to the hearing. The NAACP hailed SCHR’s aggressive approach in Brooks’ trial as “a model of new defense strategies” to satisfy the more stringent standard of proof for discrimination demanded by McCleskey.³¹⁵ Earl Shinholster, the NAACP’s southern regional director, said that the evidence of racial bias tendered during the hearing proved once again that the answer is to “abolish the death penalty.”³¹⁶

Ultimately, Judge Lawson refused to bar the death penalty at the pre-trial stage. It was always highly unlikely that a single elected judge was going to stop a capital trial on the basis of past discrimination by prosecutors, much less issue a blanket order preventing the entire office from seeking death sentences in the future. Nevertheless, rebellious localism served several objectives. First, SCHR’s holistic approach to advocacy disrupted the status quo, where a defendant in cross-racial killing was often briskly tried and sentenced to death. This more aggressive pre-trial posture litigating equality issues raised the costs of litigation for the government, forcing prosecutors to ask themselves repeatedly whether insisting upon a death sentence was worth it when the entire case might be more expeditiously and securely resolved through a plea deal. Not only would a district attorney’s office have to defend against several pre-trial motions and prepare for lengthy hearings, but they would also have to invest in experts and build a separate case in favor of death even if they secured a conviction. The costs would continue to escalate if other issues emerged, such as challenges to the possible method of execution, especially if a trial were delayed so a defendant could pursue an interlocutory appeal.

Second, such litigation tactics served an educative function by surfacing the often-subterranean racial dimensions of legal justice. They heightened public awareness of the case and led affected segments of the community to pay closer attention and even participate in the proceedings. While Bright and his staff never lost sight of the primary goal of harm reduction (here, saving their client’s life), rebellious localism ensured that constitutional issues of equality and fairness would be debated more broadly, whatever fate befell their client in the end.

Third, by hammering the issues of race and poverty in the administration of capital punishment so relentlessly, Brooks’ team increased the participants’ sensitivity to a greater possibility of a reversal on appeal or during a subsequent post-conviction proceeding. The new judge, no doubt wanting above all as clean a trial as possible on the second go-round, had given defense lawyers plenty of leeway to raise their concerns and preserve issues for appeal. Exploiting that desire helped them to overcome the usual obstacles to building a robust record of discrimination during a criminal trial. If their client was convicted, that record would be before an appellate body should judges be in the mood to engage in constitutional policymaking.

During jury selection, Pullen still used all his peremptory strikes against black jurors. Even so, aggressive defense lawyering led to a jury seated with nine black citizens and three white citizens—a far cry from what happened the first time around.³¹⁷

Fighting so hard for racial equality now gave Brooks’ team another chance to battle for human dignity in front of a mixed-race jury. Their change of venue motion was granted, and the trial took place in Morgan County. This time, the state’s case did not feature overtly racist appeals.³¹⁸ After Brooks was convicted of murder, Bright pleaded with the jury to spare his client from the electric chair. “We get down now to the ultimate issue here: Do we kill William Brooks?” Bright said to the jurors. “An issue about as stark and about as great a moral decision as a human being could ever be called upon to make.”³¹⁹ He proceeded to give a textbook closing argument weaving together themes of residual doubt and the possibility of redemption, as well as a deep dive into the aspects of Brooks’ troubled upbringing, including childhood abuse, that favored a merciful outcome.

After deliberating for less than an hour, the jury decided to impose a life sentence. Once again, rebellious localism had made the difference. This time, unlike in the Horton case, rebellious localism had yielded a life sentence without necessitating an appeal and collateral litigation.

Brooks’ ordeal illustrated another aspect of abolitionists’ harm reduction goals: using the legal process to keep a client alive long enough for political conditions to shift back in their direction. As Rachel Barkow has explained, “[p]opulist fears and impulses among the electorate create pressure on prosecutors to make ill-advised short-term decisions that end up compromising public safety”³²⁰ and violating rights. High-profile, cross-racial murder cases during the War on Crime years tempted prosecutors into breaking constitutional rules and engaging in unethical conduct. But as Bright’s strategies illustrated, extending a life beyond a particular historical moment might lead a different prosecutor to agree to a plea deal or, as in Brooks’ case, secure a jury with sufficient distance from highly racialized politics to consider mercy.³²¹

As for the cause lawyer’s goal of achieving an authoritative repudiation of McCleskey, that would take more time.³²² More lasting policy transformation, too, would require building on legal errors and structural injustice uncovered in SCHR’s cases. Whether the issue involved abolishing capital punishment, reforming how jury lists were constituted, reducing or eliminating peremptory strikes, or constraining how prosecutors made charging decisions—reform would require political action, not merely favorable judicial decisions.

Even so, what happened in Johnny Lee Gates’ case in 2018 should offer abolitionists hope that rebellious localism can do some good for long-term goals. Citing SCHR’s win in Foster v. Chatman, lawyers for Gates gained access to the prosecutors’ notes during his original 1977 murder trial. Gates, a black man who has always maintained his innocence, was convicted of rape and murder of a white woman by an all-white jury. The notes showed that prosecutors closely tracked the race of prospective jurors, marking white jurors with “W” and black jurors as “N.”³²³ Additionally, prosecutors described black jurors as “slow,” “old + ignorant,” “cocky,” “con artist,” “hostile,” and “fat.”³²⁴

Because the prosecutors were Doug Pullen and William Smith, from the same office that had prosecuted Brooks, SCHR lawyers Patrick Mulvaney and Katherine Moss introduced the study they had compiled based on that earlier case. They argued that Gates was entitled to a new trial based on the “newly discovered notes” plus “the pattern of strikes across cases establish systematic race discrimination.”³²⁵ From 1975 to 1979, the state brought seven capital cases against black defendants in Muscogee County and struck 41 black jurors—in 6 of those cases, every single black juror was eliminated to secure all-white juries. Pullen was involved in 5 of the 7 cases, striking 27 of 27 black jurors. Smith was involved in four of those cases. According to the affidavit of Dr. Michael Lacey, “the probability that they
exercised those strikes without considering race is 0.000000000000000000000000000004.”³²⁶

On January 10, 2019, a state court granted Gates’ extraordinary motion for a new trial on a separate ground: that DNA testing of evidence from the crime site did not contain Gates’ DNA. But in the stunning opening pages of his order, the judge also accepted the evidence of racial discrimination presented by SCHR, finding the evidence of bias “overwhelming.”³²⁷ At last, abolitionists could point to formal recognition of historical evidence of structural racism. Not only did the judge find that the prosecutor’s office had a practice of race-based peremptory challenges, but he also connected that jury selection strategy to outrageous rhetorical appeals made by prosecutors during capital trials. He noted that arguments in front of all-white juries were more explicitly racist and deplored the “racially charged arguments [that] spanned across multiple cases, including Gates’s case.”³²⁸

The Georgia Supreme Court upheld the lower court order granting relief based on the DNA evidence. Yet the justices, too, like the local judge, went out of their way to note the “troubling findings” of prosecutorial misconduct in capital cases “held in the Chattahoochee Judicial Circuit between 1975 and 1979.”³²⁹ Even if it was not the explicit rationale for relief, the structural racism claim—with its focus on highlighting intentional racism in particular counties and circuits—almost certainly shaped how these judges perceived the rest of the defendant’s arguments.

This victory mattered because in recent years, successful arguments to end capital punishment have not sounded in religious or other abstract rationales, such as the efficacy of deterrence, but rather concerns about actual innocence, unequal administration on the basis of race and poverty, and excessive costs. For instance, when the Washington State Supreme Court halted the death penalty on state constitutional grounds in 2018, it did so because capital punishment “is unequally applied—sometimes by where the crime took place, or the county of residence, or the available budgetary resources at any given point in time, or the race of the defendant.”³³⁰ With Gates, abolitionists acquired another crowbar with which to pry open the machinery of death.

CONCLUSION

Rebellious localism is a strategy of legal resistance that is most effective during tough political times, when legal doctrine is in the process of becoming more complex and less humanitarian in orientation, when public servants are becoming less interested in vindicating robust theories of equality and fairness and instead focused on maximizing other objectives. Its practitioners search for spaces within doctrine to subvert the ideological and policymaking intentions of judges and exploit opportunities to turn the tables on public servants who fall short of ideals. In part to correct for the waning of trust in legal institutions, they continue to appeal to broader, intuitive notions of what is just and fair given the immense stakes involved in capital cases.

When those stakes were the highest—a client’s life hung in the balance—and national political conditions were least favorable for maximalist progressive constitutional projects, Bright and his staff were willing to do what it took to implement this approach. For them, it meant not giving up on wider reform goals, such as abolishing the death penalty and improving the quality of indigent defense systems, but rather entailed shifting the emphasis to harm reduction and incremental advancement of structural claims. From the standpoint of harm reduction, success would be measured according to lives saved or extended. Capital cases were slowed down, executions were put off time and again. In Georgia, a state supreme court that began the post-Gregg era generally unwilling to review capital trials closely eventually became alarmed by the inequities on display and, as in cases like Ford and Gamble, started to send appalling trials back to be done over. On that score, rebellious localism accomplished more than one might have dreamed at the outset.

If doctrine is in part a method of empowering allies and weakening adversaries, then rebellious localism also advanced this agenda. In terms of advancing principles of racial equality and fundamental fairness in criminal trials and resisting the impoverished vision of justice exemplified in McCleskey, rebellious localism created fresh templates for action and legal precedents such as Horton and Gates to build upon—often, in situations far removed from the influence of the U.S. Supreme Court. These victories, which included pre-trial rulings forcing the disclosure of evidence in the hands of prosecutors or forcing public servants to testify, went the farthest. Equally useful were rulings that excoriated the underrepresentation of jury pools or practices that denied eligible black citizens a chance to participate in the criminal process. These rulings showed the lengths to which some public officials were willing to go to kill fellow citizens—mostly black people charged with serious crimes against white people. By insisting that the misconduct uncovered was not just evidence of isolated bad actors but rather proof of a system gone awry, SCHR’s work advanced abolitionist aims. At this broader level, rebellious localism shamed elites by exposing the inequitable aspects of the criminal justice system.

Nevertheless, rebellious localism was an extremely time-intensive endeavor. Given the unavoidability of court-centered and litigation-focused tactics, in-court progress would be limited by the nature of the adjudicative process unless out-of-court mobilization could capitalize on momentum created during legal proceedings. Putting local systems on trial entailed front-loading and multiplying colorable constitutional claims, as well as escalating legal rhetoric about fundamental values at stake. That meant consciously creating more work for themselves and their adversaries by converting the pre-trial process into an engine for public law-style litigation. It also meant that advocates could not serve quite as many clients as they might otherwise, for the maximalist model of representation meant fewer cases they would be able to add to their plate.

This technique involved destroying the possibility of maximally efficient capital trials and generating friction between the cause lawyers themselves and other legal actors who were repeat players. Another drawback, at least in court, was that abolitionists often chose to play to existing stock stories about racial hostility rather than delve more deeply into what was likely a more complicated truth. As Randall Kennedy puts it, cross-racial disparities often have to do more with “racially selective empathy rather than racially selective hostility” because white prosecutors, judges, and jurors “relate more fully to the suffering of white victims” who can be readily “imagined as family or friends.”³³¹ Some of this account emerged through pre-trial hearings, but not enough to inform specific proposals to reduce the distorting effects of selective empathy throughout the criminal justice system.

An advocacy group can only hope to pull off rebellious localism of this sort if it has sufficient ties to the community and is capable of tapping the people’s sense of history, their long-held grievances, and their own dreams of justice. It must also have the right personnel: people who would rather be feared as adversaries than loved, willing to battle every legal point.

SCHR could not save every client, nor did they win every motion. Yet the organization’s successes over time—and its staff and cooperating attorneys—enjoyed several legal victories after beating significant odds—suggest that a sharp theoretical dichotomy between radicalism and gradualism is too simplistic. Rather, historians and theorists should be looking for forms of gradualism that can co-exist with radical aims, striving to better understand when hybrid approaches to legal reform might work and when the tensions are too great to manage.

To be sure, SCHR did not accomplish these goals alone. Others were engaged in local battles against the death penalty systems in their states, exposing inequities in terms of race, wealth, and geography. Nevertheless, SCHR’s efforts contributed to the burgeoning discourse that capital punishment was unjust because it was administered unequally and unfairly. The organization’s work represents only one part of that broader story of abolition that continues to unfold.³³²

From the standpoint of judges making constitutional law at the highest levels, the lessons should be more sobering. Efforts to portray the law in terms that privilege order over justice are not only likely to fail, but could wind up horrifying the law’s subjects and causing counterproductive effects. Such projects will engender furious resistance, even when the winds appear to be blowing in the very direction that Justices might wish to go. An overweening desire for legal efficiency can in fact produce its opposite: a flurry of legal texts and orations that call into doubt the prospects for equal justice and the legitimacy of the very institutions that order-preserving jurists hope to bolster. Deep worries about whitewashing inequality may prompt accusations of racism that taint outcomes, practices, and judicial personnel—whether or not they are satisfactorily proven.

Concerns about the value of statistical evidence had played a role in Justice Powell’s desire to insulate the criminal justice system in McCleskey. But he had not done much, if anything, to call into question the integrity of the Baldus study, or to explain convincingly why that evidence was any less reliable than in other settings. His solution—to neither seriously question it but to suggest statistical evidence was less useful on a state-wide scale—did not end advocates’ efforts to quantify racism.

As SCHR’s experience demonstrates, it remained possible to use expert testimony and quantitative evidence to shed light on prosecutorial motives in charging decisions and peremptory strikes. It is true that their studies involved fewer state actors, but it is not obvious that the evidence was significantly more reliable than the Baldus study. While replicating similar cross-racial patterns, the local studies had a smaller sample size and considered fewer non-racial variables. The mini-McCleskey hearings did give prosecutors a chance to explain their apparently race-based conduct, something that Justice Powell went to some length to say did not happen with the Baldus study. The failure by prosecutors such as Briley and Pullen to rebut the evidence of racial discrimination was then held against them.

Another factor seems important: In SCHR’s cases, statistical evidence of bias was not the only evidence offered. Instead, such evidence of unequal administration of the law bolstered other evidence of discrimination by a particular bad actor or practices of a discrete jurisdiction. For this reason, the narratives of unconstitutional behavior were simpler, more familiar. They resonated with beliefs about the quality of local justice and pricked the consciences of people to reflect more deeply on how much more might still need to be done.

At the end of the day, the basic point remains: McCleskey did not end constitutional debate or solve problems of proof once and for all. To the contrary, the ruling opened a more intense and grueling chapter of the debate over the meaning of equal justice. On this question, as well as with the ultimate scope and significance of that precedent, elites would not have the last word.

96 S. Cal. L. Rev. 1031

Download

Robert L. Tsai*

* Professor of Law and Law Alumni Scholar, Boston University School of Law. I am grateful for the help of Mary Sidney Harbert in locating old case files at the Southern Center for Human Rights, and to Nathan Jordan, Archives Specialist for the National Archives. Earlier versions of this Article were presented at workshops at Boston University’s School of Law, University of Colorado School of Law, University of Connecticut Law School, Fordham Law School, New York Law School, and the University of Utah Law School, which brought me out to Salt Lake City as the 2022 Howard Rolapp Distinguished Visitor. Generous support from Dean Angela Onwuachi-Willig and Boston University School of Law allowed me to complete this project. I deeply appreciate the feedback on previous drafts from Bethany Berger, Stephen Bright, Debby Denno, Jonathan Feingold, Brandon Garrett, Erika George, Aya Gruber, Aziz Huq, Gary Lawson, Benjamin Levin, Justin Murray, Sachin Pandya, David Seipp, Matt Tokson, and Mark Tushnet. Invaluable research assistance was provided by Victoria Gallerani, Greg Margida, Colin Wagner, Allie Wainwright, and Catherine MacCarthy. Finally, thanks to Jessica Block, Diana Chung, and the staff of the Southern California Law Review for their fine editorial assistance.

Robert L. Tsai*

After “McCleskey”

Robert L. Tsai*

In the 1987 decision, McCleskey v. Kemp, the Supreme Court rejected a black death row inmate’s argument that significant racial

The Court’s Morality Play: The Punishment Lens, Sex, and Abortion

June Carbone* & Naomi Cahn†

This Article uncovers the hidden framework for the Supreme Court’s approach to public values, a framework that has shaped—and will

Red, White, and Blue—And Also Green: How Energy Policy Can Protect Both National Security and the Environment

David M. Schizer*

Too often, energy policy protects the environment while neglecting national security, or vice versa. Since each goal is critical, this

The Healthcure System: A Regional Accountable Care Model to Remedy Healthcare’s Pricing Problem

Christopher A.G. LoCascio*

INTRODUCTION The most sinister game show in American life commences every time a hospital provides care, draws up an eye-popping

Divided Agencies

Brian D. Feinstein* & Abby K. Wood†

Clashes between presidential appointees and civil servants are front-page news. Whether styled as a “deep state” hostile to its democratically

The Social Context of the Law: A Critical Analysis of Reliance Interests in the Department of Homeland Security v. Regents of the University of California

Raquel Muñiz,* Maria Lewis,† Grace Cavanaugh‡ & Melissa Woolsey††

In 2020, the U.S. Supreme Court ruled on the Department of Homeland Security v. Regents of the University of California case.

INTRODUCTION

I. HISTORY AND BACKGROUND: THE RAPID EXPANSION OF “PUBLIC USE”

II. THE BRINKMANN CASE

A. The Impossible Inquiry That Is (Actually) Possible

B. The Brinkmann Majority’s Disregard of Their Own Precedent, Goldstein v. Pataki

Significance of Objective Evidence

Possibility of Closer Objective Scrutiny

Pretextual Taking: A Claim of Dubious Jurisprudential Pedigree?

C. The Possibly Fatal Mistake of Kelo Misinterpretation

An Unwarranted Inference Drawn by the Kelo Majority

Two Ways of Interpretation: Examining New England Estates LLC v. Town of Branford

III. THE NINTH & SEVENTH CIRCUITS

A. Analysis of the Ninth Circuit

B. The Seventh Circuit & Question of Legislative Deference

IV. WHAT NOW?

A. The Dangers of Rational Basis Review

B. Heightened Review: The Tripartite Burden-Shifting Standard

Direct Versus Indirect Evidence

Beyond a Merely Cognizable Reason for Condemnation

Elevated Risk of Pretext/Bad Faith

C. So What About the Equal Protection Clause?

The Three-Tier Framework

Doctrine of Unconstitutional Animus

D. Brinkmann Implications

CONCLUSION

99 S. Cal. L. Rev. 405

INTRODUCTION

I. A BRIEF HISTORY OF ALIEN LAND LAWS

II. RECENT BILLS AND LAWS: THE FIFTH WAVE

A. Singling Out Specific Countries

B. Targeting Foreign Adversaries

C. Proximity to Military Installations and Critical Infrastructure

D. Harsh Penalties

E. Targeting Corporations

III. ARE ALIEN LAND LAWS LEGAL?

A. Statutory Violations

1. The Fair Housing Act

2. Civil Rights Acts of 1866 and 1870

B. Equal Protection Concerns

1. Does Strict Scrutiny Apply?

i. Do All Alienage Classifications Receive Strict Scrutiny, or Only Classifications Affecting Lawful Permanent Residents?

ii. Does the “Political Functions” Exception to Strict Scrutiny for State Alienage Classifications Extend to Ownership of Real Property?

iii. Do Restrictions Discriminate Based on National Origin if They Draw Distinctions Based on Where a Person or Entity Is Domiciled or Headquartered?

2. Analyzing Alien Land Laws Under Strict Scrutiny

i. National Security

ii. Food Security

iii. Absentee Ownership

iv. Real Estate Market Prices

3. Rational Basis Analysis

i. Regular Rational Basis Review

ii. Rational Basis with Bite

C. Preemption Concerns

1. Immigration Preemption

2. Foreign Affairs Preemption

3. The CFIUS and USDA Regimes

i. Reporting to USDA

ii. CFIUS

D. Dormant Commerce Clause

1. Interstate Commerce

2. Foreign Commerce

CONCLUSION

98 S. Cal. L. Rev. 305

INTRODUCTION

I. IN THE SHADOW OF AN INFAMOUS RULING

A. A Difference of Opinion at the Grassroots

B. Rebellious Localism

C. Post-McCleskey Surprises

II. SHAMING THE SYSTEM

A. Expanding the Scope and Targets of Equality Claims

B. Unrigging Juries

C. Documenting Race-Based Jury Strikes

D. Holding Prosecutors Accountable

E. Bouncing Judges

III. MCCLESKEY AS A SWORD

A. Horton v. Zant

1. A Mini-McCleskey Hearing

2. The Eleventh Circuit Validates Rebellious Localism

B. State v. Brooks

1. Recusing All the Judges and Prosecutors of a Circuit

2. Structural Racism Claims