Hereby Afforded Precedential Value for Lower Courts Faced with Similar Matters
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Vol. 4 4 , No. HARVARD JOURNAL 3 of HARVARD LAW & PUBLIC POLICY VOLUME 44, NUMBER 3 SUMMER 2021 J OURNAL OURNAL ARTICLES THE “ESSENTIAL” FREE EXERCISE CLAUSE Josh Blackman of THE LEGALITY OF PRESIDENTIAL SELF-PARDONS LAW Paul J. Larkin, Jr. THE PRECEDENTIAL EFFECTS OF & THE SUPREME COURT’S EMERGENCY STAYS PUBLIC Trevor N. McFadden & Vetan Kapoor ESSAY POLICY COMMON GOOD ORIGINALISM: OUR TRADITION AND OUR PATH FORWARD Josh Hammer NOTES LEVEL-UP REMEDIES FOR RELIGIOUS DISCRIMINATION Summer 202 1 Pages 636 to 992 HARVARD JOURNAL of LAW & PUBLIC POLICY VOLUME 44, NUMBER 3 SUMMER 2021 ARTICLES THE “ESSENTIAL” FREE EXERCISE CLAUSE Josh Blackman .................................................................. 637 THE LEGALITY OF PRESIDENTIAL SELF-PARDONS Paul J. Larkin, Jr. ............................................................ 763 THE PRECEDENTIAL EFFECTS OF THE SUPREME COURT’S EMERGENCY STAYS Trevor N. McFadden & Vetan Kapoor ........................... 827 ESSAY COMMON GOOD ORIGINALISM: OUR TRADITION AND OUR PATH FORWARD Josh Hammer ................................................................... 917 NOTE LEVEL-UP REMEDIES FOR RELIGIOUS DISCRIMINATION Mark C. Gillespie ............................................................. 961 HARVARD JOURNAL of LAW & PUBLIC POLICY Editor-in-Chief MAX BLOOM Articles Chair Deputy Editor-in-Chief Managing Editors JASON MUEHLHOFF JAY SCHAEFER JOHN KETCHAM STUART SLAYTON Chief Financial Officer Senior Articles Editors COOPER GODFREY Deputy Managing Editors JOHN ACTON Deputy Chief Financial Officer CATHERINE COLE JACOB HARCAR DAVIS CAMPBELL ROSS HILDABRAND TYLER DOBBS ALEXANDER KHAN JESSICA TONG Articles Advisor KEVIN LIE SEANHENRY VAN DYKE MATT BENDISZ ELI NACHMANY Executive Editors PAYTON ALEXANDER Articles Editors JOHN BAILEY Notes Editors ALAN CHAN TYLER BOWEN JASON ALTABET JONATHAN DEWITT JAMIN DOWDY NICK CORDOVA PHIL HAUNSCHILD ROBERT FARMER Website Manager MARIA HURYN ACHARY ROUEV Z G WILLIAM FLANAGAN HUNTER PEARL ALEXANDER GUERIN BRYAN POELLOT JOHN MORRISON DANA SCHNEIDER ALLY MUSHKA ASHLEY VAUGHAN CARLOS ANDRES PEREZ GARZON ISAAC WYANT ISAAC CONRAD HERRERA SOMMERS AARON WARD VINCENT WU Senior Editors KATHRYN BARRAGAN COURTNEY JONES JACOB RICHARDS AMANDA BELLO BENJAMIN LEE AUDRA ROBITAILLE NOAH BENSON PRANAV MULPUR BEN SALVATORE AUGUST BRUSCHINI DANIEL MUMMOLO DANA SCHNEIDER JONATHAN DEWITT VINCENT PARASCANDOLO MITCHELL WELLMAN WILLIAM FLANAGAN HUNTER PEARL DUNN WESTHOFF MARK GILLESPIE JORDAN PECK ISAAC WYANT PHIL HAUNSCHILD BRYAN POELLOT JUSTIN YIM AB HENRY BRETT RAFFISH Editors PATRICK CESPEDES JACK KIEFFABER OWEN SMITHERMAN KYLE EISWALD JOEL MALKIN MIKHAEL SMITS ROGAN FENG ANTHONY PERICOLO ARI SPITZER MARIO FIANDEIRO ANASTASIA PYRINIS MATTHEW STEINER JACK FOLEY SPENCER SABEY COLE TIMMERWILKE ETHAN HARPER NASH SANTHANAM DAVID TYE JOHN HEO MICHAEL SCHNEEKLOTH ZACH WINN AKSHAT SHEKHAR Founded by E. Spencer Abraham & Steven J. Eberhard BOARD OF ADVISORS E. Spencer Abraham, Founder Steven G. Calabresi Douglas R. Cox Jennifer W. Elrod Charles Fried Douglas H. Ginsburg Orrin Hatch Jonathan R. Macey Michael W. McConnell Diarmuid F. O’Scannlain Jeremy A. Rabkin Hal S. Scott David B. Sentelle Bradley Smith Jerry E. Smith THE HARVARD JOURNAL OF LAW & PUBLIC POLICY RECEIVES NO FINANCIAL SUPPORT FROM HARVARD LAW SCHOOL OR HARVARD UNIVERSITY. IT IS FUNDED EXCLUSIVELY BY SUBSCRIPTION REVENUES AND PRIVATE CHARITABLE CONTRIBUTIONS. The Harvard Journal of Law & Public Policy is published three times annually by the Harvard Society for Law & Public Policy, Inc., Harvard Law School, Cambridge, Massachusetts 02138. ISSN 0193-4872. Nonprofit postage prepaid at Lincoln, Nebraska and at additional mailing offices. POSTMASTER: Send address changes to the Harvard Journal of Law & Public Policy, Harvard Law School, Cambridge, Massachusetts 02138. Yearly subscription rates: United States, $55.00; foreign, $75.00. Subscriptions are renewed automatically unless a request for discontinuance is received. The Journal welcomes the submission of articles and book reviews. Each manuscript should be typed double-spaced, preferably in Times New Roman 12-point typeface. Authors submit manuscripts electronically to [email protected], preferably prepared using Microsoft Word. Views expressed are those of the authors and do not necessarily reflect the views of the Society or of its officers, directors, editors, members, or staff. Unless otherwise indicated, all editors are students at the Harvard Law School. Copyright © 2021 by the Harvard Society for Law & Public Policy, Inc. PREFACE As Volume 44 of the Harvard Journal of Law & Public Policy reaches its final Issue, we say goodbye to an astonishing year. The months since March 2020 were ones of uncertainty, novelty, and, for far too many of us, grief. But at long last, the COVID-19 pandemic has begun to recede; life in America may soon seem normal once again. And amid this strange new normalcy, we take time to reflect on the crises our country has faced, and on the effects they have had on the law. Last year, we witnessed doctrinal innovations, as our courts dealt in real time with the unprecedented restrictions on daily life that state and local governments imposed in response to the public health crisis. The year also marked a transition in government, following President Joe Biden’s election in November. And the turmoil of the past year brought renewed interest among conservatives in the methodological commitments that judges bring to the table. On each of these questions, we are pleased to say, this Issue has something to offer. Our first Article, by Professor Josh Blackman, discusses the evolving history of the Supreme Court’s caselaw in applying the Free Exercise Clause to the restrictions on religious gatherings during the pandemic. Professor Blackman traces the Court’s shift from a regime that was largely deferential to such restrictions to one that now consistently rules in favor of the free exercise of religion. Our second Article, by Paul J. Larkin, Jr., makes use of the change in administrations to address the much-contested issue of whether the President may pardon himself. Larkin argues that such pardons are lawful, which is not to say that they are wise, and that Preface ii the proper recourse would be political—namely, impeachment. Finally, our third Article, by Judge Trevor N. McFadden of the District Court for the District of Columbia and Vetan Kapoor, seeks to answer one of the most pressing legal questions raised by the pandemic: What should be the precedential effect of those decisions the Supreme Court issues from its “shadow docket”? Judge McFadden and Kapoor conclude that the Court’s decisions regarding emergency relief lie on a spectrum. While some ought to have little precedential force, they argue, many decisions should be regarded as a strong indication of the Court’s view on a contested legal matter, and thereby afforded precedential value for lower courts faced with similar matters. In addition to these Articles, we also have the great pleasure of publishing an Essay by Josh Hammer that makes the case for “common good originalism”—an approach under which judges adhere to the original public meaning of the Constitution but are informed by conservative norms and values in determining that meaning. Such an approach, Hammer argues, would better accomplish the substantive ends of our constitutional order than the value-neutrality that conservative originalists have traditionally promoted. Finally, we are very happy to conclude this Issue with a Note from Mark C. Gillespie, one of our student editors, in which he discusses the Court’s practice of sometimes resolving constitutional violations of unequal treatment by “leveling up” a disfavored group to the benefits enjoyed by a favored group and sometimes by “leveling down,” depriving the favored and disfavored groups of the benefits altogether. Gillespie contends that the affirmative right of the Free Exercise Clause requires a presumption that courts level up where religious freedom is concerned. In the past two Issues, I concluded these Prefaces by thanking the Journal’s staff. I will reiterate my gratitude here in briefest form: our student editors have done tremendous work during a time of Preface iii massive disruption to their lives, and I cannot express how well- served I have been by them. They are, truly, the heart of this publication. My time with the Journal has now come to its close, but I have every confidence that the Journal’s staff will continue its legacy of excellence. I particularly look forward to the work the Journal will produce under its new Editor-in-Chief, Eli Nachmany, with whom I have had the great privilege of working over the last two years, and who I know will do a superb job running the organization. I cannot wait to see our next Volume. Max J. Bloom Editor-in-Chief THE “ESSENTIAL” FREE EXERCISE CLAUSE JOSH BLACKMAN* In the span of a year, COVID-19 would affect every corner of the globe. During this period, governments were confronted with dif- ficult choices about how to respond to the evolving pandemic. In rapid succession, states imposed lockdown measures that ran head- long into the Constitution. Several states deemed houses of wor- ship as non-essential, and subjected them to stringent attendance requirements. In short order, states restricted the exercise of a con- stitutional right, but allowed the exercise of preferred economic privileges. And this disparate treatment was premised on a simple line: whether the activity was “essential” or “non-essential.”