On the last day of oral argument this Term, in an atypical May convening, the Justices of the Supreme Court grappled with how to integrate two recent reforms to the federal sentencing regime in the case of Terry v. United States.1 In 2010, Congress had enacted the Fair Sentencing Act2 and reduced the by-then notorious 100:1 sentencing disparity between crack and powder cocaine offenses to 18:1. The Act was a triumph for criminal justice reformers after decades of advocacy highlighting the racially disproportionate and loaded nature of the disparity.3 In 2018, Congress then enacted the First Step Act4 to complete its work. In an amicus brief to the Supreme Court, four senators who co-sponsored the First Step Act described it as encompassing a “historic bipartisan coalition — the likes of which, over the last several decades, Congress has rarely seen,” one that “came together to bring greater fairness and justice to the Nation’s criminal justice system.”5 In an era marked by partisan rancor and legislative torpor, this significant criminal justice enactment rang out as the kind of reform still possible under the right circumstances. Section 404 of the First Step Act, “[c]ritical to that coalition,” applied the 2010 changes to the crack and powder cocaine sentencing ranges retroactively, enabling offenders still in prison to apply for resentencing under the fairer terms.6
Tarahrick Terry was denied this opportunity. Federal prosecutors argued (and the Eleventh Circuit agreed) that section 404 did not apply to the drug offense under which he had been convicted for possessing just under four grams of crack cocaine — the bottom tier on the ladder of offenses involving possession with intent to distribute.7 During his original sentencing under the 1986 Anti-Drug Abuse Act,8 coupled with the relevant enhancements under the Federal Sentencing Guidelines, Terry faced a sentencing range of no more than thirty years, and the district court ultimately imposed a sentence of 188 months, followed by a period of supervised release.9 With the benefit of the First Step Act, the upper limit on his sentence would have been twenty years, which in his view almost certainly would have translated into a substantially lower sentence than he received.10 As he explained in his petition for certiorari, the evidence from the first year of the First Step Act has been powerful: district courts have applied section 404 to reduce sentences on average by seventy-one months, or by 26%.11 More than 90% of those who have obtained relief have been Black men, 57.4% of whom were sentenced as career offenders.12
The United States government opposed certiorari in the case. Throughout most of the litigation and across the courts of appeals, the Department of Justice (DOJ) consistently defended the construction of the First Step Act that precluded Terry and those similarly situated from resentencing.13 But in March of 2021, the acting Solicitor General (SG) sent the Court a letter.14 “Following the change in Administration,” she wrote, “the Department of Justice began a process of reviewing the government’s interpretation of Section 404 of the First Step Act,” after which it changed its position to support Terry’s claims that the First Step Act applied to him.15 The government was now calling for the reversal of the Eleventh Circuit and seeking leave to file an out-of-time brief.16 The Court obliged and appointed an amicus to take the position the government had abandoned.17 The government’s about-face required the Court to reschedule the argument for May, when it ordinarily would have closed its virtual doors and turned inward to produce the stream of summer opinions.18 It also prompted questions from the Justices.
Chief Justice Roberts opened his questioning of the Deputy Solicitor General by noting the switch: “Prior administrations have done that. Subsequent administrations are going to do that. But I wondered what standard your office applies in deciding when to take that . . . step. Is it just that you think the position is wrong and you would have reached a different one?”19 Justice Barrett probed still further: “[Y]ou changed pretty late. It was the day your brief was due. Would you characterize [the government’s prior position] as implausible, or is it your position that the statute is ambiguous and that in light of the purposes of the First Step Act and the Fair Sentencing Act that yours is the better interpretation?”20 The cold transcript masks any hint of skepticism or annoyance behind these questions. But the Justices were clearly seeking to get their bearings — to determine the modes of reasoning the government had adopted to change its view of the law. The Justices were looking for familiar processes or administrative law concepts with which to assimilate the government’s switch into the range of reasonable disagreement about the law’s meaning.21
Tarahrick Terry lost in the Supreme Court by a vote of 9–0, despite the fact that the U.S. government had changed its reading of the law to support his claim to resentencing.22 He is scheduled to be released from prison later this year, so the outcome of the case will have a limited effect on him.23 But the Court’s reading of the statute will have significant implications for defendants like Terry who were sentenced before 2010, for terms of a decade or more, for convictions involving low-level drug possession.24 The exquisite technical puzzle of the case does not quite match the gargantuan political effort the two reconciled statutes represent — the bipartisan effort to refashion the punitive federal sentencing regime in a way that transformed the system from top to bottom. But despite the government’s best efforts, not a single Justice could reach an answer that matched the text with the actual ambitions of the new sentencing regime as articulated by the lawmaker amici.25 In her concurrence, Justice Sotomayor called on Congress to use its “tools to right this injustice,” to once and for all accomplish what lawmakers believed they already had achieved but in fact had failed to bring to fruition because of inartful drafting.26 Members of Congress from both parties immediately pledged to make the necessary changes to the law.27
The juxtaposition of the government’s changed position with the resounding loss immediately raises questions about the shift in position in the first place. Was the government’s confession of error itself an error? In his opinion for the Court, Justice Thomas accused the government of having engaged in a textual “sleight of hand.”28 Does the stark contrast between the government’s argument and the unanimous Court’s conclusions show that the changed position was politically motivated? If the answer to this question is yes, does it matter?
The fact that October Term 2020 straddled two presidential administrations representing two different political parties with highly salient and distinct identities, at a moment of political and social unrest, unsettled the Court’s regular order by laying bare that legal interpretation is, in fact, often a function of politics.29 Elections matter, not just for the policies the new executive branch will pursue, but also for what its lawyers will tell us and the courts about what the law requires or allows. Whether they like it or not, courts will be active participants in the political evolution represented by a new administration. The advent of this most recent one has already underscored (again) that the rhetoric and presumptions of legal continuity and transcendence are fragile and sometimes deceptive.
In this Foreword, I take October Term 2020 — a Term of transition — as an occasion to explore both the processes and the promise of what I will call regime change, or the replacement within the executive branch of one set of constitutional, interpretive, philosophical, and policy commitments with another. Given the occasion, I focus on the role of law, legal argument, and the courts in enabling or thwarting regime change and the democratic evolution it represents. Indeed, our current political transition confronts us with a central tension of our legal order, between a judicial and legal culture that valorizes stability and custom using language and concepts that sound in rule of law, and the democratic imperative that our institutions help effectuate rather than impede the political will reflected in election results.30 It requires us to ask: What counts as a legitimate basis for change? How reasoned versus responsive should the government’s legal and policy positions be? Are stability and democracy incommensurate values?
My basic claim will be that, in thinking through these and related questions, we ought not rush to treat disruption and change as shocks or aberrations that must be rigorously explained. Shifts in legal argument should not be met with skepticism, and they often should be credited as legitimate reinterpretations of law that, in turn, will help give rise to a new political regime. More generally, we should regard rapid evolution in legal interpretation and corresponding policy development as things to be valued, enabled, and pursued. The processes of unfurling, establishing, and perhaps eventually consolidating a new regime will extend well beyond an administration’s first change of clothes before the Court and will depend on the development of novel legal arguments and the valuation of institutional creativity. The viability of each of these dynamics, in turn, will depend upon the existence of political will on the inside to push for such innovation and political and legal patience on the outside to allow these dynamics to play out.
Valuing and pursuing these forms of change are justified, ultimately, because they help to sustain a connection between government and democratic politics. This connection should lead us to identify and then think twice about legal doctrines, institutional features, and modes of argument that slow transitions and transformations down, either intentionally or in service of objectives laudable on their face.31 We should be wary of the turn to legalisms that purport to advance the rule of law but that in fact inhibit the evolution of our political order. Moments of transition, such as the one through which we are living, can help to reveal how the concept of the rule of law forms part of an agonistic struggle perpetuated not just by courts, but also by political actors. The concept provides a ready-made vocabulary, well rooted in our legal culture, that serves important values but that can also be employed to stifle democratic development.32
Sometimes, perhaps even often, presumptions in favor of the status quo may be wise, particularly when it comes to the exercise of executive and administrative power (my primary focus). But the orientation I take in this Foreword is to defend the use of power to bring regime change about, not without regard to institutional interests in stability, but with a view to cultivating institutions capable of making political and democratic change concrete. This orientation centers two basic principles of vital importance to the nation’s future as a polity: making the government work for the people and ensuring that the people accept the outcomes of democratic processes, even when they are outcomes with which they disagree.33
In Parts I and II of this Foreword, I develop the concept of regime change. Part I is descriptive and presents an institutionally specific and context-dependent account by detailing the legal and policy changes brought about in the early months of the new presidential Administration. Consideration of what justifies a new administration’s change of position before the Court — whether it should occur only sparingly, or as much as necessary to reflect the administration’s values — only begins the inquiry into regime change. Legal innovation turns out to be vital to the realization of a new political order. This account thus requires an extended engagement with the relationship between law and politics, from which emerges a neorealist conception of each enabling the other.34
Part II turns to justification and defends the concerted effort by executive officials to instantiate a new legal and political order, including by undoing the work of a predecessor administration. In this Part, I defend political disruption of legal and policy processes, casting skepticism on the arguments for stability and continuity often invoked by courts and commentators to slow down the exercise of power. I focus on what it can mean for a new regime to rise within the executive branch, contending that an assertive orientation to the new regime’s powers has become essential in our time to maintaining responsive and effective institutions of governance. Neither the pursuit of legal and political change through reinterpretation of the law on the one hand, nor the insistence on continuity in government on the other, has a single ideological valence. But my argument does challenge a particular, transcendent conception of the law and offer an account of self-government that depends on respect for the state — both contested positions in today’s legal debates. These positions, in turn, require engaging the important structural question with which I end this Part. Treating executive governance as necessary to fulfilling the goals of democratic politics requires exploring the relationship of such governance to the capacities of Congress. Accordingly, I consider how interbranch relations might be implicated in regime change; the phenomenon I describe cannot have meaning without reference to the regime state of the other branches.
In Part III, because of the occasion for this Foreword, I focus on the role the courts play in facilitating and mediating the processes of regime change, not just at moments of transition, but in governance more generally. This inquiry requires critical consideration of the administrative law doctrines that structure and regulate policy change and development, as well as of the Court’s rapidly evolving jurisprudence implicating the very capacity to govern. Though often couched in procedural, structural, or formal principles of law, this jurisprudence ultimately amounts to a political intervention because of the way it constrains the choices of the political branches. I argue that ideological and political preferences should be credited as justifications for administrative action, because administration is not just about rationalist thought, but also about evolving preferences.
What is more, recent jurisprudential developments that affect the capacities of government underscore that the Court itself has undergone its own regime change, and that judges can be agents of the phenomenon. We are, in fact, in a moment of regime conflict, the wages of which I explore to conclude this Part. Just as both the presidency and Congress were about to revert to Democratic hands, President Trump replaced the late Justice Ginsburg with Justice Barrett, creating a 6–3 conservative majority on the Court. Even if we acknowledge that there will be (and already have been) alliances among Justices in cases that are not predicted by ideology, and that the labels “conservative” and “liberal” contain within them distinct jurisprudential methodologies and orientations to doctrinal fields, the new array of Justices puts a fine point on the conservative identity of the judicial branch. Our particular moment and this particular Term thus offer up a stark contrast — between a new Administration and a Court with discordant theories of law, the state, and the reach of the Constitution.
I end with a Coda that considers how two developments in contemporary political culture, which also happened to buffet the Court this Term, threaten to render all of the preceding discussion superfluous. Increasingly, partisan and pitched debates over voting rights and immigration — over whether and how to set limits on the polity’s expansion — threaten a kind of regime entrenchment that would distort and even subsume the dynamics of regime change that I describe and defend. Rule of law–style claims that long have been invoked to justify such limits today barely mask a deeper impulse to exclude people from power in order to prevent regime change altogether.
* Leighton Homer Surbeck Professor of Law, Yale Law School. I am enormously grateful for the insightful feedback on drafts of this piece from Ashraf Ahmed, Daryl Levinson, Marty Lederman, Douglas NeJaime, Nicholas Parrillo, Daphna Renan, and Reva Siegel. The ideas explored in this Foreword have also been deeply shaped by two significant collaborations, with Adam Cox on the subject of the President and immigration law, and Anya Bernstein on the question of how agencies interpret statutes and how political and institutional judgment blend. Any errors or misguided observations here are of course my own. I also could not be more grateful for and impressed with the research assistance I have received from a group of highly energetic and talented Yale Law School students, including Sam Ayres, Callie Bruzzone, Colin Burke, Kayla Crowell, Beatrice Pollard, Thomas Ritz, Lexi Smith, Nate Urban, and Bardia Vaseghi. Last, I owe an enormous debt to the editors of the Harvard Law Review for their rigorous and painstaking work.