Volume 111

Political Mootness

Congress and the executive have engaged in major clashes over the scope of their powers, particularly involving Congress’s subpoena power and power of the purse. In the last two decades, none of these disputes with the government represented on both sides of the “v” has ended in a final judgment on the merits. This Article develops the concept of “political mootness.” As elections take place and the parties in interest to litigation change, cases become politically moot. In the judiciary, political mootness manifests in three ways: legal mootness, separation-of-powers settlements conditional on vacatur of judicial opinions, or executive discretion in intra-branch prosecutions.

But political mootness also affects the coordinate branches. Through a series of original interviews,** **.This Article draws in part on interviews conducted by the author with confidential sources. Out of respect to the confidential nature of these interviews, and to preserve promises of anonymity made to sources, the Virginia Law Review did not independently verify the content of these interviews. Representations concerning the substance of these interviews are the sole responsibility of the author.Show Morethis Article shows that Congress self-constrains its authority preemptively to avoid litigation. Congress is aware that litigation threatens to drag out disputes beyond its electoral mandate and so pivots to use less than the full scope of its authority. These interviews also reveal a widespread practice of “friendly subpoenas,” requested by putative witnesses for legal, political, or other cover. Although Congress appears to have significant authority, when executive witnesses are truly recalcitrant, that authority is at its lowest potency.

With this broader context for inter-branch conflicts, this Article returns to take on the role of adjudication in those conflicts. Adjudication performs neither law declaration nor dispute resolution when the United States is represented on both sides. Instead, this Article argues, adjudication is a forum for tripartite dialogue about the structural constitution’s boundaries. In this frame, some aspects of political mootness are desirable, but other aspects have entrenched structural disadvantages that Congress faces. This Article offers some proposals to strengthen Congress’s position in disputes with the executive, while taking advantage of some of political mootness’s features.

Introduction

In times of divided government, high-stakes conflicts between the political branches erupt. Sometimes it’s constitutional hardball.1 1.Mark Tushnet, Constitutional Hardball, 37 J. Marshall L. Rev. 523, 523 (2004) (naming the phenomenon where “political claims and practices—legislative and executive initiatives—that are without much question within the bounds of existing constitutional doctrine and practice but that are nonetheless in some tension with existing pre-constitutional understandings”).Show More Other times, it’s a constitutional showdown.2 2.See generally Eric A. Posner & Adrian Vermeule, Constitutional Showdowns, 156 U. Pa. L. Rev. 991, 991 (2008) (“Showdowns occur between the President and the courts, between Congress and the courts, as well as between the President and Congress. Indeed, some showdowns involve all three branches simultaneously, or threaten to do so.”).Show More And sometimes, it’s constitutional no-ball.3 3.See Matthew Callahan & Reuben Fischer-Baum, Where the Trump Administration Is Thwarting House Oversight, Wash. Post (Oct. 11, 2019), https://www.washingtonpost.com/gr‌aphics/2019/politics/trump-blocking-congress (cataloguing Trump Administration refusals to comply with congressional subpoenas).Show More Since the George W. Bush Administration, the House has subpoenaed sitting cabinet officials and former White House Counsels; it has investigated a former President’s involvement with a riot on the Capitol; and it has sought to enforce its power of the purse through shutdowns. The executive branch has pushed back, using claims of executive privilege, enforcement discretion, or other tools.4 4.See infra Part I.Show More In some, but importantly not all,5 5.See infra Part II.Show More instances, the House has called on the federal judiciary to back its use of authority. What goes into the decision to initiate litigation? And what function does that litigation serve?

This Article examines the role of adjudication in apex separation-of-powers disputes: cases brought by Congress against the president and intra-branch prosecutions. I argue that these cases become “politically moot” when elections result in unified government and the interested parties to the case change. Political mootness, I will show, is a concept with legal and political dimensions. It has some positive features, but it can also entrench structural disadvantages that burden Congress when it takes on the executive.

The Article is focused on “apex powers” disputes.6 6.See Aziz Z. Huq, Legal or Political Checks on Apex Criminality: An Essay on Constitutional Design, 65 UCLA L. Rev. 1506, 1511–14 (2018) (embracing the looseness of the term “apex criminality” to describe offenses committed by high-level officials).Show More This includes a subset of separation-of-powers cases that implicate core constitutional powers: litigation between the political branches as parties and intra-branch prosecutions. I include, for example, when a House committee sues to enforce a subpoena against White House officials.7 7.I exclude suits where government actors are not parties on both sides of the litigation, which would include challenges over whether congressional legislation impermissibly infringes on executive power. I draw this line because federal courts operate differently when adjudicating disputes between branches as parties to litigation. See Z. Payvand Ahdout, Separation-of-Powers Avoidance, 132 Yale L.J. 2360, 2363, 2365–66 (2023).Show More Critically, this set of cases includes power issues such as congressional subpoena power, the scope of governmental privileges and immunities, and the line between Congress’s appropriations power and the president’s enforcement discretion.

It turns out that in the last two decades, these cases have never reached a final judgment on the merits. As these cases take a protracted path through the judiciary, they do so against the backdrop of election cycles. With time, the parties in interest change. The House moves from Democratic to Republican control or the presidency changes hands. Scholarship has accounted for the ways elections change, for example, the positions that the Justice Department takes in litigation8 8.See, e.g., Cristina M. Rodríguez, The Supreme Court, 2020 Term—Foreword: Regime Change, 135 Harv. L. Rev. 1, 4 (2021); Michael R. Dreeben, Stare Decisis in the Office of the Solicitor General, 130 Yale L.J.F. 541, 552 (2021); Margaret H. Lemos & Deborah A. Widiss, The Solicitor General, Consistency, and Credibility, 100 Notre Dame L. Rev. 621, 623–24 (2025) (examining multiple explanations for the Solicitor General’s changes in positions).Show More or the incentives that elected officials have in initiating or dropping litigation.9 9.Zachary D. Clopton & Katherine Shaw, Public Law Litigation and Electoral Time, 2023 Wis. L. Rev. 1513, 1514.Show More But what about the cases that are already in federal court? How do they end?

Part I documents a concept I call “political mootness.” In the judiciary, political mootness takes three forms. First, and most straightforwardly, some of these cases are rendered legally moot when the parties in control change. The issue in the case is no longer “live,” thus precluding judicial review. For example, in an appropriations challenge, a new president may not continue to spend funds in the way the House alleged was ultra vires.10 10.See, e.g., Yellen v. U.S. House of Representatives, 142 S. Ct. 332 (2021) (vacating as legally moot the dispute over border wall funding initiated by the House during the first Trump Administration); Petition for a Writ of Certiorari at 11, Yellen, 142 S. Ct. 332 (No. 20-1738) (“Following the change in Administration, and consistent with the President’s discretion that ‘no more American taxpayer dollars be diverted to construct a border wall,’ [the Department of Defense] has canceled all border-wall projects and discontinued using any of the challenged funds for any further construction.” (quoting Proclamation No. 10142, 86 Fed. Reg. 7225 (Jan. 27, 2021))).Show More

Second, political mootness comes to fruition when the parties negotiate separation-of-powers settlements. When elections result in a rotation of power that puts the same political party in control of both the House and the White House, they often reach a settlement conditional on universal vacatur of every opinion in the case.11 11.This has one qualified exception. See infra Section I.B.Show More Although this separation-of-powers settlement has become the dominant resolution in modern apex litigation, this is the first Article to identify its existence and incorporate it into structural constitutional scholarship. It is somewhat surprising that cases that receive so much attention—from litigation over President Obama’s allegedly ultra vires funding of the Affordable Care Act (“ACA”)12 12.See U.S. House of Representatives v. Burwell, 130 F. Supp. 3d 53, 63 (D.D.C. 2015).Show More to that over former White House Counsel Don McGahn’s categorical refusal to testify before Congress13 13.See Comm. on the Judiciary, U.S. House of Representatives v. McGahn, 415 F. Supp. 3d 148, 153 (D.D.C. 2019).Show More—still have discoveries to be unearthed. This may be because too often, attention is focused on the Supreme Court (or, more accurately, on anticipation of the Supreme Court’s review). But these cases may never get there. Across cases, buried in dockets, is evidence of a separation-of-powers agreement between the branches of government that leaves much to be uncovered.

Third, political mootness manifests in intra-branch criminal cases. Almost from their inception, the prosecutions of then-former President Trump prompted commentary and anxiety about whether the cases could resolve before the November 2024 election.14 14.See, e.g., James D. Zirin, Can Trump Conceivably Beat the Legal Clock—and the Rap?, The Hill (Oct. 9, 2023, 1:30 PM), https://thehill.com/opinion/judiciary/4244738-can-trump-c‌onceivably-beat-the-legal-clock-and-the-rap/ [https://perma.cc/LC75-KFQT] (“The D.C. claim of presidential immunity is unlikely to win dismissal of the case, but it may succeed in delaying his D.C. trial, now scheduled for March 4, to a date known only in Neverland.”); David A. Graham, The Cases Against Trump: A Guide, The Atlantic (Jan. 6, 2025), https://ww‌w.theatlantic.com/ideas/archive/2025/01/donald-trump-legal-cases-charges/675531.Show More Of course, they did not. And upon President Trump’s election, the Special Counsel consulted binding Department of Justice (“DOJ”) policy, which became binding on the courts: a sitting president cannot be prosecuted.15 15.1 Jack Smith, Final Report on the Special Counsel’s Investigations and Prosecutions 1 (2025), https://www.justice.gov/storage/Report-of-Special-Counsel-Smith-Volume-1-Januar‌y-2025.pdf [https://perma.cc/3UAE-553F].Show More

Political mootness is borne of a design feature of American democracy: time. In the political branches, time plays a constraining role on authority. Through fixed and regular elections, the Constitution places a time limit on the power of any individual president or member of Congress. But time operates in a different direction (and more indirectly) in the judicial branch. It is not fixed and regular elections that constrain federal judges with life tenure. Instead, one constraining and fundamental feature of our democratic judicial system16 16.See Judith Resnik, Judicial Selection and Democratic Theory: Demand, Supply, and Life Tenure, 26 Cardozo L. Rev. 579, 590 (2005) (“[B]eing a judge within democratic governments ought to entail a set of practices distinct from that of judging in nondemocratic polities.”).Show More is that every party is guaranteed process.17 17.U.S. Const. amend. V.Show More But process takes time. When protracted judicial process converges with elections, the result is political mootness. As the parties in interest to litigation change, their political interests no longer align with the legal interests they sought to vindicate.

To understand the role adjudication plays in apex litigation, we must understand what it means for Congress to choose to go to court. Through a series of original interviews with individuals who conducted the investigation for the House Select Committee to Investigate the Attack on the Capitol (“the Committee”), Part II examines their investigatory strategy and legal decision-making.18 18.I set out to understand the Select Committee’s investigative and legal decision-making and how, in particular, that decision-making was informed by the timeline of the investigation. I spoke with senior staffers who had worked for the Committee. Some individuals’ roles were exclusively for the Committee, others served broader roles in the House and had the Committee within their portfolios. Most individuals served in a legal capacity. I also spoke with senior staffers with experience in the Senate to understand the similarities and differences between House and Senate investigations and litigation. I recognize that the pool of individuals—generally related to the Committee’s work, serving in a legal role, and willing to speak with me—may suffer from selection bias. Although I used semi-structured interviews, I make no claims about interview design or comprehensiveness. I include them to add some context from congressional decision-makers, a contingent that is not often heard from directly in legal scholarship concerning the separation of powers. Cf. David E. Pozen, The Leaky Leviathan: Why the Government Condemns and Condones Unlawful Disclosures of Information, 127 Harv. L. Rev. 512, 520 n.21 (2013) (using interviews with sources inside the executive branch to add “texture” to an analysis of governmental leaks). I also assured the individuals anonymity.Show More Through these interviews, Part II shows that, first, familiar words like “subpoena” and “contempt” do not have the same meaning within Congress as they do in federal court. Second, there is a widespread use of so-called “friendly subpoenas” in congressional investigations. These are subpoenas that are requested by putative witnesses for legal, political, or social cover. On the outside, these subpoenas look no different from subpoenas of truly recalcitrant witnesses. But this means that the House is not as aggressive with its power as it appears to outside observers. Indeed, Part II further shows that the House self-constrains its authority in part because of the specter of political mootness. These interviews show some evidence of the structural disadvantage the House suffers from in disputes with the executive. They demonstrate the House’s need for an ally to back its use of power. But these interviews also show how recalcitrant witnesses can use courts and legal process (or the mere threat of them) to run out the clock on a congressional investigation.

With this richer understanding of what happens outside, before, and during apex litigation, Part III turns back to political mootness and what it means for the role of adjudication in apex disputes. Focusing on the special problem of separation-of-powers settlements, Part III argues that courts engage in neither law declaration nor dispute resolution when they are called on to adjudicate apex disputes. Rather than dismissing these cases as outside of the judicial role, Part III calls for recasting the role that courts play as a participant in tripartite constitutional dialogue and reframes the legal outputs of these cases in terms of constitutional dialogue. Part IV turns to the normative, arguing that within the frame of dialogue, some aspects of political mootness are desirable. But political mootness is also subject to abuse. Part IV suggests some ways to address its shortcomings, while capitalizing on its advantages.

Structural constitutional scholarship is in need of a conceptual frame and vocabulary to discuss structural constitutional litigation between the three branches of government. That conceptual frame cannot be sheared of its politics. Political mootness is one conceptual structure that helps us better understand the modern fractures, allocations, and distribution of power between our three branches of government.

  1. ** This Article draws in part on interviews conducted by the author with confidential sources. Out of respect to the confidential nature of these interviews, and to preserve promises of anonymity made to sources, the Virginia Law Review did not independently verify the content of these interviews. Representations concerning the substance of these interviews are the sole responsibility of the author. ↑
  2.  Mark Tushnet, Constitutional Hardball, 37 J. Marshall L. Rev. 523, 523 (2004) (naming the phenomenon where “political claims and practices—legislative and executive initiatives—that are without much question within the bounds of existing constitutional doctrine and practice but that are nonetheless in some tension with existing pre-constitutional understandings”). ↑
  3.  See generally Eric A. Posner & Adrian Vermeule, Constitutional Showdowns, 156 U. Pa. L. Rev. 991, 991 (2008) (“Showdowns occur between the President and the courts, between Congress and the courts, as well as between the President and Congress. Indeed, some showdowns involve all three branches simultaneously, or threaten to do so.”). ↑
  4.  See Matthew Callahan & Reuben Fischer-Baum, Where the Trump Administration Is Thwarting House Oversight, Wash. Post (Oct. 11, 2019), https://www.washingtonpost.com/gr‌aphics/2019/politics/trump-blocking-congress (cataloguing Trump Administration refusals to comply with congressional subpoenas). ↑
  5.  See infra Part I. ↑
  6.  See infra Part II. ↑
  7.  See Aziz Z. Huq, Legal or Political Checks on Apex Criminality: An Essay on Constitutional Design, 65 UCLA L. Rev. 1506, 1511–14 (2018) (embracing the looseness of the term “apex criminality” to describe offenses committed by high-level officials). ↑
  8.  I exclude suits where government actors are not parties on both sides of the litigation, which would include challenges over whether congressional legislation impermissibly infringes on executive power. I draw this line because federal courts operate differently when adjudicating disputes between branches as parties to litigation. See Z. Payvand Ahdout, Separation-of-Powers Avoidance, 132 Yale L.J. 2360, 2363, 2365–66 (2023). ↑
  9.  See, e.g., Cristina M. Rodríguez, The Supreme Court, 2020 Term—Foreword: Regime Change, 135 Harv. L. Rev. 1, 4 (2021); Michael R. Dreeben, Stare Decisis in the Office of the Solicitor General, 130 Yale L.J.F. 541, 552 (2021); Margaret H. Lemos & Deborah A. Widiss, The Solicitor General, Consistency, and Credibility, 100 Notre Dame L. Rev. 621, 623–24 (2025) (examining multiple explanations for the Solicitor General’s changes in positions). ↑
  10.  Zachary D. Clopton & Katherine Shaw, Public Law Litigation and Electoral Time, 2023 Wis. L. Rev. 1513, 1514. ↑
  11.  See, e.g., Yellen v. U.S. House of Representatives, 142 S. Ct. 332 (2021) (vacating as legally moot the dispute over border wall funding initiated by the House during the first Trump Administration); Petition for a Writ of Certiorari at 11, Yellen, 142 S. Ct. 332 (No. 20-1738) (“Following the change in Administration, and consistent with the President’s discretion that ‘no more American taxpayer dollars be diverted to construct a border wall,’ [the Department of Defense] has canceled all border-wall projects and discontinued using any of the challenged funds for any further construction.” (quoting Proclamation No. 10142, 86 Fed. Reg. 7225 (Jan. 27, 2021))). ↑
  12.  This has one qualified exception. See infra Section I.B. ↑
  13.  See U.S. House of Representatives v. Burwell, 130 F. Supp. 3d 53, 63 (D.D.C. 2015). ↑
  14.  See Comm. on the Judiciary, U.S. House of Representatives v. McGahn, 415 F. Supp. 3d 148, 153 (D.D.C. 2019). ↑
  15.  See, e.g., James D. Zirin, Can Trump Conceivably Beat the Legal Clock—and the Rap?, The Hill (Oct. 9, 2023, 1:30 PM), https://thehill.com/opinion/judiciary/4244738-can-trump-c‌onceivably-beat-the-legal-clock-and-the-rap/ [https://perma.cc/LC75-KFQT] (“The D.C. claim of presidential immunity is unlikely to win dismissal of the case, but it may succeed in delaying his D.C. trial, now scheduled for March 4, to a date known only in Neverland.”); David A. Graham, The Cases Against Trump: A Guide, The Atlantic (Jan. 6, 2025), https://ww‌w.theatlantic.com/ideas/archive/2025/01/donald-trump-legal-cases-charges/675531. ↑
  16.  1 Jack Smith, Final Report on the Special Counsel’s Investigations and Prosecutions 1 (2025), https://www.justice.gov/storage/Report-of-Special-Counsel-Smith-Volume-1-Januar‌y-2025.pdf [https://perma.cc/3UAE-553F]. ↑
  17.  See Judith Resnik, Judicial Selection and Democratic Theory: Demand, Supply, and Life Tenure, 26 Cardozo L. Rev. 579, 590 (2005) (“[B]eing a judge within democratic governments ought to entail a set of practices distinct from that of judging in nondemocratic polities.”). ↑
  18.  U.S. Const. amend. V. ↑

  19.  I set out to understand the Select Committee’s investigative and legal decision-making and how, in particular, that decision-making was informed by the timeline of the investigation. I spoke with senior staffers who had worked for the Committee. Some individuals’ roles were exclusively for the Committee, others served broader roles in the House and had the Committee within their portfolios. Most individuals served in a legal capacity. I also spoke with senior staffers with experience in the Senate to understand the similarities and differences between House and Senate investigations and litigation. I recognize that the pool of individuals—generally related to the Committee’s work, serving in a legal role, and willing to speak with me—may suffer from selection bias. Although I used semi-structured interviews, I make no claims about interview design or comprehensiveness. I include them to add some context from congressional decision-makers, a contingent that is not often heard from directly in legal scholarship concerning the separation of powers. Cf. David E. Pozen, The Leaky Leviathan: Why the Government Condemns and Condones Unlawful Disclosures of Information, 127 Harv. L. Rev. 512, 520 n.21 (2013) (using interviews with sources inside the executive branch to add “texture” to an analysis of governmental leaks). I also assured the individuals anonymity. ↑

Antitrust’s Interdependence Paradox

Introduction

Price-fixing conspiracies are the “supreme evil” that Congress intended antitrust laws to deter and to punish.1 1.See Verizon Commc’ns, Inc. v. Law Offs. of Curtis V. Trinko, LLP, 540 U.S. 398, 408 (2004) (describing collusion as “the supreme evil of antitrust”).Show More Because price fixers face ten-year prison sentences, criminal fines, and private liability often measured in the hundreds of millions of dollars, price-fixing conspirators generally undertake elaborate measures to conceal their collusion. Consequently, direct evidence of collusion is rarely available, and private plaintiffs must rely on circumstantial evidence to prove their antitrust cases.

Remarkably, federal courts have applied an unproven economic theory to effectively immunize the most likely price-fixing conspiracies from antitrust liability. Price-fixing cartels are more probable in concentrated markets with very few firms, generally called oligopoly markets. Price fixing requires coordination and concealment, which are easier in oligopoly markets. Recent antitrust opinions, however, have made it significantly more difficult for antitrust plaintiffs to prove collusion through circumstantial evidence in precisely these markets, the ones most prone to price-fixing conspiracies. This creates a paradox in antitrust law: the most likely conspiracies are the hardest to prove.

The predicament flows from judicial misapplication of interdependence theory. Interdependence describes the phenomenon of businesses pricing their products based on predicting how their competitors will respond.2 2.See 6 Phillip E. Areeda & Herbert Hovenkamp, Antitrust Law: An Analysis of Antitrust Principles and Their Application ¶ 1410a, at 71 (4th ed. 2017) (“‘Interdependence’ refers to a state of affairs in which each person’s actions depend on his perception of how others will act.”).Show More Interdependence theory predicts that firms in a concentrated market may be able to “coordinat[e] their pricing without an actual agreement to do so.”3 3.In re Text Messaging Antitrust Litig., 782 F.3d 867, 871 (7th Cir. 2015).Show More Invoking this interdependence theory, federal courts assert that price-fixing conspiracies are unlikely to occur in concentrated markets because the rival firms do not need to conspire: they can simply observe each other from a distance. Consequently, judges discount circumstantial evidence of collusion when price-fixing defendants operate in market structures that are the most conducive to price fixing. As a result, price-fixing conspirators are often insulated from antitrust liability.4 4.See Louis Kaplow, Competition Policy and Price Fixing 133–45 (2013); see also William H. Page, Pleading, Discovery, and Proof of Sherman Act Agreements: Harmonizing Twombly and Matsushita, 82 Antitrust L.J. 123, 130 & n.36 (2018) (describing Kaplow’s “paradox of proof”).Show More

Part I of this Article explains how antitrust plaintiffs must often prove price fixing through circumstantial evidence. This generally requires the plaintiffs to show that the defendants raised their prices in unison and that these parallel price increases were the result of collusion, not independent decision-making. Plaintiffs prove the second step by presenting evidence of plus factors, which are facts and circumstances that make it more likely that price rises were produced by collusion rather than independent parallel action. Courts have long recognized market structure as an important plus factor because concentrated markets are more susceptible to illegal cartelization. Firms in such markets will find it easier to negotiate their cartel agreement, to exclude non-cartel rivals from the market, to enforce their illegal accord, and to conceal their price-fixing conspiracy from antitrust officials and consumers.

Part II explains how courts have also assumed that price-fixing conspiracies do not occur in concentrated markets. Using interdependence theory, several courts have eliminated market concentration as a plus factor even though market concentration facilitates price-fixing conspiracies. Moreover, courts have invoked interdependence theory to drain a wide variety of plus factors of their probative value. And courts sometimes disparage expert testimony that explains why the proffered plus factors point to collusion. Ultimately, courts have imposed heightened evidentiary burdens to prove price-fixing claims in oligopoly markets without providing any guidance on how to satisfy these heightened burdens.

Part III demonstrates that—despite what interdependence theory predicts—firms in concentrated markets still need to conspire to fix prices. An explicit conspiracy has many advantages over relying on interdependence: prices can be more easily fixed, negotiated, and renegotiated with actual conversations among rival firms; cartels can create enforcement mechanisms, which interdependence lacks; and actual conspirators can avoid miscommunications, which can destabilize price-raising aspirations based on interdependence. Empirical evidence shows unquestionably that firms in concentrated markets do, in fact, conspire to fix prices.

Part IV discusses how federal courts misapprehend the relationship between interdependence theory and plus factors. Interdependence theory does not negate plus factors; plus factors disprove interdependence theory. Plus factors help judges and juries “distinguish between innocent interdependence and illegal conspiracy.”5 5.Blomkest Fertilizer, Inc. v. Potash Corp. of Sask., 203 F.3d 1028, 1043 (8th Cir. 2000) (en banc) (Gibson, J., dissenting).Show More The fact that defendants are in a concentrated market represents an important plus factor because concentrated markets facilitate price-fixing collusion. But this evidence must be supplemented by other plus factors. More effort should be undertaken to educate federal judges about how price-fixing conspiracies actually operate. This would reduce the risk of courts invoking interdependence theory to discount plus factors, especially those that are unrelated to market concentration.

  1.  See Verizon Commc’ns, Inc. v. Law Offs. of Curtis V. Trinko, LLP, 540 U.S. 398, 408 (2004) (describing collusion as “the supreme evil of antitrust”). ↑

  2.  See 6 Phillip E. Areeda & Herbert Hovenkamp, Antitrust Law: An Analysis of Antitrust Principles and Their Application ¶ 1410a, at 71 (4th ed. 2017) (“‘Interdependence’ refers to a state of affairs in which each person’s actions depend on his perception of how others will act.”). ↑

  3.  In re Text Messaging Antitrust Litig., 782 F.3d 867, 871 (7th Cir. 2015). ↑

  4.  See Louis Kaplow, Competition Policy and Price Fixing 133–45 (2013); see also William H. Page, Pleading, Discovery, and Proof of Sherman Act Agreements: Harmonizing Twombly and Matsushita, 82 Antitrust

    L.J

    . 123, 130 & n.36 (2018) (describing Kaplow’s “paradox of proof”). ↑

  5.  Blomkest Fertilizer, Inc. v. Potash Corp. of Sask., 203 F.3d 1028, 1043 (8th Cir. 2000) (en banc) (Gibson, J., dissenting). ↑

Free Speech as White Privilege: Racialization, Suppression, and the Palestine Exception

Introduction

Free speech is under siege. This is not to say that all speakers and viewpoints are at equal risk—some voices receive support and protection, while others are subject to threats and suppression. Pro-Palestinian speech falls into the latter category. Critics argue that there has long been a “Palestine Exception” to free speech,1 1.See Palestine Legal, The Palestine Exception to Free Speech: A Movement Under Attack in the US 4–5 (2015), https://static1.squarespace.com/static/548748b1e4b083fc03ebf70e/t/56‌0c2e0ae4b083d9c363801d/1443638794172/Palestine+Exception+Report+Final.pdf [https://‌perma.cc/W4JT-79UR].Show Morebut attempts to silence pro-Palestinian advocacy have dramatically increased since Israel began its assault on Gaza in October of 2023. This assault was launched after incursions by Hamas militants that killed approximately 1,200 Israelis.2 2.See Patrick Kingsley, Aaron Boxerman, Natan Odenheimer, Ronen Bergman & Marco Hernandez, The Day Hamas Came, N.Y. Times (Dec. 22, 2023), https://www.nytimes.com/int‌eractive/2023/12/22/world/europe/beeri-massacre.html.Show MoreIn response, Israel has killed more than forty-six thousand Palestinians to date3 3.See Emma Graham-Harrison, The Devastating Impact of 15 Months of War on Gaza, The Guardian (Jan. 15, 2025, 2:26 PM), https://www.theguardian.com/world/2025/jan/15/the-dev‌astating-impact-of-15-months-of-war-on-gaza. This figure is based on reports from Gaza health officials. Id. An analysis by outside experts estimates that the number of deaths resulting from traumatic injury in Gaza is actually far higher, having reached 64,000 by June 2024. See Zeina Jamaluddine, Hanan Abukmail, Sarah Aly, Oona M R Campbell & Francesco Checchi, Traumatic Injury Mortality in the Gaza Strip From Oct. 7, 2023, to June 30, 2024: A Capture-Recapture Analysis, 405 Lancet 469, 469 (Feb. 8, 2025). If indirect deaths from destroyed health care infrastructure, lack of shelter, illness, and related factors are included, the total death count attributable to Israel’s military actions may exceed 186,000. See Rasha Khatib, Martin McKee & Salim Yusuf, Counting the Dead in Gaza: Difficult but Essential, 404 Lancet 237, 237 (July 10, 2024).Show Moreand left over two million on the brink of famine and disease.4 4.See Mark Landler, Nowhere to Go: How Gaza Became a Mass Death Trap, N.Y. Times (Oct. 7, 2024), https://www.nytimes.com/2024/10/07/world/middleeast/gaza-civilians-deaths‌-israel-war.html; Matthew Mpoke Bigg, Gazans Are so Malnourished that They Could Face Famine, Report Warns, N.Y. Times (Oct. 18, 2024), https://www.nytimes.com/2024/10/17/w‌orld/middleeast/gaza-malnourished-famine-warnings.html.Show MoreThe scale of destruction has been so vast that a United Nations Special Rapporteur has concluded that there are “reasonable grounds” to believe that Israel has been committing genocide in Gaza,5 5.Francesca Albanese, Hum. Rts. Council, Anatomy of a Genocide: Report of the Special Rapporteur on the Situation of Human Rights in the Palestinian Territories Occupied Since 1967, at 1, U.N. Doc. A/HRC/55/73 (July 1, 2024) https://www.un.org/unispal/document/anat‌omy-of-a-genocide-report-of-the-special-rapporteur-on-the-situation-of-human-rights-in-the-palestinian-territory-occupied-since-1967-to-human-rights-council-advance-unedited-versio‌n-a-hrc-55/ [https://perma.cc/7HHL-87FE].Show Moreand at least one U.S. Federal District Court has likewise found that Israel’s actions “may plausibly constitute a genocide in violation of international law.”6 6.Def. for Child. Int’l-Palestine v. Biden, 714 F. Supp. 3d 1160, 1163 (N.D. Cal. 2024).Show More

This devastating war on Gaza has inspired widespread protests in support of Palestine on campuses and in cities across America,7 7.See A Snapshot of Support for Palestinians Across America, N.Y. Times (Nov. 7, 2023), https://www.nytimes.com/2023/11/04/us/protests-israels-gaza.html; Colbi Edmonds, Anna Betts & Anemona Hartocollis, What to Know About the Campus Protests Over the Israel-Hamas War, N.Y. Times (Apr. 28, 2024), https://www.nytimes.com/2024/04/17/us/college-protests-israel-hamas-war-antisemitism.html.Show Morewhich has in turn elicited fierce backlash from defenders of Israel in government and other positions of authority.8 8.See Lisa Lerer & Rebecca Davis O’Brien, In Protests Against Israel Strikes, G.O.P. Sees ‘Woke Agenda’ at Colleges, N.Y. Times (Nov. 1, 2023), https://www.nytimes.com/2023/11/0‌1/us/politics/republicans-israel-war-protests-college-campuses.html.Show MoreMuch of this backlash has directly impinged upon academic freedom. While definitions of academic freedom may vary,9 9.See, e.g., Erwin Chemerinsky, Education, The First Amendment, and the Constitution, 92 U. Cin. L. Rev. 12, 14 (2023) (treating academic freedom as “the belief that teachers should be able to express themselves in their classrooms and in their scholarship, and students should be able to express themselves as well”); Robert C. Post, Academic Freedom and Legal Scholarship, 64 J. Legal Educ. 530, 533 (2015) (conceptualizing academic freedom as the right of a scholar to pursue their research and ideas freely); Am. Ass’n of Univ. Professors, 1940 Statement of Principles on Academic Freedom and Tenure, https://www.aaup.org/report/‌1940-statement-principles-academic-freedom-and-tenure [https://perma.cc/VN9D-4V5T].Show Morethe concept should at least encompass the right of the academic community to engage in research, teaching, and debate to advance knowledge and understanding on matters of public concern. Responses to pro-Palestinian speech in higher education have clearly compromised these values. Students have been arrested and subjected to institutional sanctions;10 10.See Where Protestors on U.S. Campuses Have Been Arrested or Detained, N.Y. Times (July 22, 2024, 8:30 PM), https://www.nytimes.com/interactive/2024/us/pro-palestinian-colle‌ge-protests-encampments.html.Show Morefaculty members have been censured and terminated;11 11.Anemona Hartocollis, Professors in Trouble Over Protests Wonder if Academic Freedom Is Dying, N.Y. Times (Oct. 23, 2024), https://www.nytimes.com/2024/10/23/us/faculty-protes‌ts-academic-freedom-tenure-discipline.html; see also Stephanie Saul, Columbia Professor Says She Was Pushed to Retire Because of Her Activism, N.Y. Times (Jan. 10, 2025), https://‌www.nytimes.com/2025/01/10/us/columbia-professor-katherine-franke-retires.html (detailing how Columbia University faculty members were subject to investigation based on their advocacy on behalf of pro-Palestinian students).Show Moreand universities have been threatened with the prospect of losing their federal funding and accreditation if they allow pro-Palestinian protests on campus.12 12.See Ed Pilkington, Republicans Threaten to Punish Colleges That Allow Pro-Palestinian Protests, The Guardian (Oct. 9, 2024, 5:00 AM), https://www.theguardian.com/us-news/2024/‌oct/09/republicans-crackdown-universities-pro-palestinian-protests.Show More

Many supporters of Israel contend that restrictions on pro-Palestinian advocacy at colleges and universities are justified, arguing that much of this speech is antisemitic and makes some Jewish students feel unsafe.13 13.See Zach Montague, Campus Protest Investigations Hang Over Schools as New Academic Year Begins, N.Y. Times(Oct. 5, 2024), https://www.nytimes.com/2024/10/05/us/‌politics/college-campus-protests-investigations.html.Show MoreOthers have suggested that there is a double standard between racism and antisemitism at play when universities fail to condemn some forms of pro-Palestinian speech, especially when speakers express support for Hamas’s 2023 attack. For example, Berkeley School of Law Dean Erwin Chemerinsky asked in the pages of the New York Times if “anyone [thought] the officials would be silent if there was a Ku Klux Klan gathering on a college campus celebrating white supremacist violence?”14 14.Erwin Chemerinsky, College Officials Must Condemn On-Campus Support for Hamas Violence, N.Y. Times (Oct. 20, 2024), https://www.nytimes.com/2024/10/20/opinion/hamas-colleges-free-speech.html. Black and Jewish student groups at Berkeley issued statements criticizing Chemerinsky’s piece, arguing that it “misappropriates Black suffering” and “weaponizes concerns for Jewish safety to manufacture further consent for a genocide.” Berkeley J. of Black L. & Pol’y & Berkeley L. Jews for Palestine, ‘Hypocritical and Insulting’: Black and Jewish Students at Berkeley Law Say Dean Chemerinsky Uses Them as Props to Vilify Palestine Solidarity Movement, Daily Californian (Oct. 25, 2024), https://www‌.dailycal.org/opinion/op-eds/hypocritical-and-insulting-black-and-jewish-students-at-berkele‌y-law-say-dean-chemerinsky-uses-them/article_9cbe4ccc-9299-11ef-bec1-83f03a661cc9.h‌tml [https://perma.cc/CY4X-M4VQ].Show MoreSimilarly, former Harvard University President Lawrence Summers declared it to be “inconceivable that the University would allow a Ku Klux Klan-allied student group to be recognized with access to funds and listservs.”15 15.See Emma H. Haidar & Cam E. Kettles, Garber’s Statement on the PSC Ignites Controversy Over Institutional Voice Policy, Harv. Crimson (Oct. 10, 2024), https://www.thec‌rimson.com/article/2024/10/10/garber-psc-statement-institutional-voice/ [https://perma.cc/G‌VD6-U3G2].Show MoreThe implication seems to be that the kind of anti-Black speech associated with the Klan would never be tolerated on college campuses, and that racialized minorities have been a special favorite of legal and institutional protection against hateful expression.

The problem with this argument is that it is demonstrably false. Not so very long ago, during my own time as a Harvard undergraduate, the Institute of Politics invited former Ku Klux Klan Grand Wizard David Duke to speak at the University’s Kennedy School of Government—and apparently had the audacity to ask the Black Student Association to cosponsor the event.16 16.See Anna D. Wilde, BSA Will Not Sponsor Duke, Harv. Crimson (Dec. 19, 1991), https://‌www.thecrimson.com/article/1991/12/19/bsa-will-not-sponsor-duke-pthe/ [https://perma.cc/‌FU7D-EQRB].Show MoreLeaders of student groups ranging from the Harvard Democrats to the Harvard Republican Club to Harvard-Radcliffe Hillel were all quoted as supporting Duke’s right to speak on campus even if they disapproved of his message.17 17.See Jonathan Samuels, Campus Groups Unite to Protest Possible Duke Visit, Harv. Crimson (Feb. 22, 1992), https://www.thecrimson.com/article/1992/2/22/campus-groups-unit‌e-to-protest-possible/ [https://perma.cc/SJA5-YVPB].Show MoreA few months before that, a student was permitted to hang a Confederate flag from the entryway of her dormitory for several weeks despite its obvious connections to white supremacy and notwithstanding the strong objections and emotional pleas advanced by Black students.18 18.See S. Allen Counter Jr., The Hurtful Confederate Flag at Harvard, Harv. Crimson (Oct. 22, 2015), https://www.thecrimson.com/article/2015/10/22/allen-counter-confederate-flag/ [https://perma.cc/DRN5-5KUH].Show MoreNor has toleration of racist imagery and rhetoric been confined to the university setting. To the contrary, free speech doctrines have broadly and consistently functioned to give white people the liberty to engage in hateful speech and to deny Black, Brown, and other racialized individuals the kinds of protection from fear and harm that supporters of Israel are now demanding. In other words, the Palestine Exception to free speech is real—and it is part of a deeper legal tradition that has enshrined free speech as an element of white privilege.

The remainder of this Essay illustrates the nexus between free speech and white privilege in the following way. Part I reviews the case law to document the courts’ consistent refusal to limit racist expression by white actors targeting racialized groups. Part II then analyzes the ways in which the law has racialized Palestinians and Muslims as being both worthy of condemnation by hateful speakers and undeserving of legal protection for their own advocacy. Part III situates attacks on pro-Palestinian speech in the context of the wider movement to silence critical voices and scholarship. Finally, this Essay concludes by emphasizing the importance of academic freedom as a means of amplifying suppressed voices and advancing narratives that challenge existing allocations of power and privilege.

  1.  See Palestine Legal, The Palestine Exception to Free Speech: A Movement Under Attack in the US 4–5 (2015), https://static1.squarespace.com/static/548748b1e4b083fc03ebf70e/t/56‌0c2e0ae4b083d9c363801d/1443638794172/Palestine+Exception+Report+Final.pdf [https://‌perma.cc/W4JT-79UR]. ↑
  2.  See Patrick Kingsley, Aaron Boxerman, Natan Odenheimer, Ronen Bergman & Marco Hernandez, The Day Hamas Came, N.Y. Times (Dec. 22, 2023), https://www.nytimes.com/int‌eractive/2023/12/22/world/europe/beeri-massacre.html. ↑
  3.  See Emma Graham-Harrison, The Devastating Impact of 15 Months of War on Gaza, The Guardian (Jan. 15, 2025, 2:26 PM), https://www.theguardian.com/world/2025/jan/15/the-dev‌astating-impact-of-15-months-of-war-on-gaza. This figure is based on reports from Gaza health officials. Id. An analysis by outside experts estimates that the number of deaths resulting from traumatic injury in Gaza is actually far higher, having reached 64,000 by June 2024. See Zeina Jamaluddine, Hanan Abukmail, Sarah Aly, Oona M R Campbell & Francesco Checchi, Traumatic Injury Mortality in the Gaza Strip From Oct. 7, 2023, to June 30, 2024: A Capture-Recapture Analysis, 405 Lancet 469, 469 (Feb. 8, 2025). If indirect deaths from destroyed health care infrastructure, lack of shelter, illness, and related factors are included, the total death count attributable to Israel’s military actions may exceed 186,000. See Rasha Khatib, Martin McKee & Salim Yusuf, Counting the Dead in Gaza: Difficult but Essential, 404 Lancet 237, 237 (July 10, 2024). ↑
  4.  See Mark Landler, Nowhere to Go: How Gaza Became a Mass Death Trap, N.Y. Times (Oct. 7, 2024), https://www.nytimes.com/2024/10/07/world/middleeast/gaza-civilians-deaths‌-israel-war.html; Matthew Mpoke Bigg, Gazans Are so Malnourished that They Could Face Famine, Report Warns, N.Y. Times (Oct. 18, 2024), https://www.nytimes.com/2024/10/17/w‌orld/middleeast/gaza-malnourished-famine-warnings.html. ↑
  5.  Francesca Albanese, Hum. Rts. Council, Anatomy of a Genocide: Report of the Special Rapporteur on the Situation of Human Rights in the Palestinian Territories Occupied Since 1967, at 1, U.N. Doc. A/HRC/55/73 (July 1, 2024) https://www.un.org/unispal/document/anat‌omy-of-a-genocide-report-of-the-special-rapporteur-on-the-situation-of-human-rights-in-the-palestinian-territory-occupied-since-1967-to-human-rights-council-advance-unedited-versio‌n-a-hrc-55/ [https://perma.cc/7HHL-87FE]. ↑
  6.  Def. for Child. Int’l-Palestine v. Biden, 714 F. Supp. 3d 1160, 1163 (N.D. Cal. 2024). ↑
  7.  See A Snapshot of Support for Palestinians Across America, N.Y. Times (Nov. 7, 2023), https://www.nytimes.com/2023/11/04/us/protests-israels-gaza.html; Colbi Edmonds, Anna Betts & Anemona Hartocollis, What to Know About the Campus Protests Over the Israel-Hamas War, N.Y. Times (Apr. 28, 2024), https://www.nytimes.com/2024/04/17/us/college-protests-israel-hamas-war-antisemitism.html. ↑
  8.  See Lisa Lerer & Rebecca Davis O’Brien, In Protests Against Israel Strikes, G.O.P. Sees ‘Woke Agenda’ at Colleges, N.Y. Times (Nov. 1, 2023), https://www.nytimes.com/2023/11/0‌1/us/politics/republicans-israel-war-protests-college-campuses.html. ↑
  9.  See, e.g., Erwin Chemerinsky, Education, The First Amendment, and the Constitution, 92 U. Cin. L. Rev. 12, 14 (2023) (treating academic freedom as “the belief that teachers should be able to express themselves in their classrooms and in their scholarship, and students should be able to express themselves as well”); Robert C. Post, Academic Freedom and Legal Scholarship, 64 J. Legal Educ. 530, 533 (2015) (conceptualizing academic freedom as the right of a scholar to pursue their research and ideas freely); Am. Ass’n of Univ. Professors, 1940 Statement of Principles on Academic Freedom and Tenure, https://www.aaup.org/report/‌1940-statement-principles-academic-freedom-and-tenure [https://perma.cc/VN9D-4V5T]. ↑
  10.  See Where Protestors on U.S. Campuses Have Been Arrested or Detained, N.Y. Times (July 22, 2024, 8:30 PM), https://www.nytimes.com/interactive/2024/us/pro-palestinian-colle‌ge-protests-encampments.html. ↑
  11.  Anemona Hartocollis, Professors in Trouble Over Protests Wonder if Academic Freedom Is Dying, N.Y. Times (Oct. 23, 2024), https://www.nytimes.com/2024/10/23/us/faculty-protes‌ts-academic-freedom-tenure-discipline.html; see also Stephanie Saul, Columbia Professor Says She Was Pushed to Retire Because of Her Activism, N.Y. Times (Jan. 10, 2025), https://‌www.nytimes.com/2025/01/10/us/columbia-professor-katherine-franke-retires.html (detailing how Columbia University faculty members were subject to investigation based on their advocacy on behalf of pro-Palestinian students). ↑
  12.  See Ed Pilkington, Republicans Threaten to Punish Colleges That Allow Pro-Palestinian Protests, The Guardian (Oct. 9, 2024, 5:00 AM), https://www.theguardian.com/us-news/2024/‌oct/09/republicans-crackdown-universities-pro-palestinian-protests. ↑
  13.  See Zach Montague, Campus Protest Investigations Hang Over Schools as New Academic Year Begins, N.Y. Times

    (Oct. 5, 2024), https://www.nytimes.com/2024/10/05/us/‌politics/college-campus-protests-investigations.html. ↑

  14.  Erwin Chemerinsky, College Officials Must Condemn On-Campus Support for Hamas Violence, N.Y. Times (Oct. 20, 2024), https://www.nytimes.com/2024/10/20/opinion/hamas-colleges-free-speech.html. Black and Jewish student groups at Berkeley issued statements criticizing Chemerinsky’s piece, arguing that it “misappropriates Black suffering” and “weaponizes concerns for Jewish safety to manufacture further consent for a genocide.” Berkeley J. of Black L. & Pol’y & Berkeley L. Jews for Palestine, ‘Hypocritical and Insulting’: Black and Jewish Students at Berkeley Law Say Dean Chemerinsky Uses Them as Props to Vilify Palestine Solidarity Movement, Daily Californian (Oct. 25, 2024), https://www‌.dailycal.org/opinion/op-eds/hypocritical-and-insulting-black-and-jewish-students-at-berkele‌y-law-say-dean-chemerinsky-uses-them/article_9cbe4ccc-9299-11ef-bec1-83f03a661cc9.h‌tml [https://perma.cc/CY4X-M4VQ]. ↑
  15.  See Emma H. Haidar & Cam E. Kettles, Garber’s Statement on the PSC Ignites Controversy Over Institutional Voice Policy, Harv. Crimson (Oct. 10, 2024), https://www.thec‌rimson.com/article/2024/10/10/garber-psc-statement-institutional-voice/ [https://perma.cc/G‌VD6-U3G2]. ↑
  16.  See Anna D. Wilde, BSA Will Not Sponsor Duke, Harv. Crimson (Dec. 19, 1991), https://‌www.thecrimson.com/article/1991/12/19/bsa-will-not-sponsor-duke-pthe/ [https://perma.cc/‌FU7D-EQRB]. ↑
  17.  See Jonathan Samuels, Campus Groups Unite to Protest Possible Duke Visit, Harv. Crimson (Feb. 22, 1992), https://www.thecrimson.com/article/1992/2/22/campus-groups-unit‌e-to-protest-possible/ [https://perma.cc/SJA5-YVPB]. ↑
  18.  See S. Allen Counter Jr., The Hurtful Confederate Flag at Harvard, Harv. Crimson (Oct. 22, 2015), https://www.thecrimson.com/article/2015/10/22/allen-counter-confederate-flag/ [https://perma.cc/DRN5-5KUH]. ↑
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