This piece was updated on June 13, 2024 to reflect the recent Supreme Court decision about access to mifepristone, and to highlight new research on medication abortion. It was originally published in November 2023, shortly after the interviews with Ruvani Jayaweera and Carrie Baker took place.

On June 13, the Supreme Court justices in a unanimous decision preserved access to mifepristone, a medication that’s used for the safe termination of early pregnancy, writing that “federal courts are the wrong forum for addressing the plaintiffs’ concerns about FDA’s actions.”

The legal future of mifepristone had hung in the balance for several months.

In August 2023, the 5th U.S. Circuit Court of Appeals ruled that mifepristone should not be prescribed past the seventh week of pregnancy, prescribed via telemedicine, or shipped to patients through the mail. In September, the Justice Department asked the Supreme Court to consider a challenge to that ruling.

On Dec. 13, 2023, the Supreme Court justices announced that they would take up the case on the availability of mifepristone. The American College of Obstetricians and Gynecologists issued a statement on the same day urging the court to rule in favor of keeping the pill on the market and available to patients. The justices heard oral arguments on March 26, 2024 before issuing the June 13 ruling.

Meanwhile, abortion is on the ballot in four states this year so far. Measures have also been proposed in several other states, with initiatives that aim to ban, restrict, or expand abortion rights. (State laws that ban abortion apply to both abortion medications and surgical procedures.)

It’s important for journalists covering abortion to have a good understanding of medication abortion so that they can better inform their audiences. Below, we explain what medication abortion is, how individuals access it, and what research shows about its safety and effectiveness.

Medication abortion

Medication abortion is also known as abortion with pills or medical abortion. The Food and Drug Administration has approved medication abortion for up to 10 weeks of pregnancy and the World Health Organization authorizes its use for up to 12 weeks. It is endorsed by several organizations, including the American College of Obstetricians & Gynecologists and the American Medical Association. Medication abortion can also be used beyond 12 weeks of pregnancy, according to several organizations including the World Health Organization and the International Federation of Gynecology and Obstetrics.

Medication abortions accounted for 51% of all abortions in the U.S. in 2020, according to a 2022 CDC report. Use of medication abortion has been on the rise in recent years, increasing by 154% from 2011 to 2020, and by 22% from 2019 to 2020.

In many parts of the world, including the U.S., a two-medication protocol is used for medication abortion: mifepristone followed by misoprostol. Mifepristone blocks the hormone that is required for the continuation of pregnancy, and misoprostol causes the uterus to cramp and expel the pregnancy tissue.

The current approved regimen for medication abortion is 200 mg of mifepristone, followed by 800 mcg of misoprostol within 24 to 48 hours. Individuals are advised to follow up with a health care provider seven to 14 days after taking mifepristone, according to the FDA.

Studies have shown that both drugs are safe and effective. In consultation with medical experts, The New York Times has curated and reviewed a collection of 101 studies on medication abortion, all of which conclude that the pills are safe.

History of mifepristone

Mifepristone, or RU-486, is a drug that blocks progesterone, a hormone that’s needed for a pregnancy to continue.

Developed by the now-defunct French pharmaceutical firm Roussel-Uclaf, the pill was first approved in France and China in 1988. As of May this year, 96 countries have approved it for medication abortion, according to the Guttmacher Institute, a sexual and reproductive health research and policy organization that supports abortion rights.

The FDA approved mifepristone for medical termination of pregnancy in September 2000. Some 5.9 million women in the U.S. used mifepristone between September 2000 and December 2022, 32 of whom died, according to the FDA, which notes in its report that “the fatal cases are included regardless of causal attribution to mifepristone.” Causes of death included infection, homicide, ruptured ectopic pregnancy, drug overdose, and suicide.

Danco Laboratories manufactures Mifeprex, the brand name for mifepristone. In 2019, the FDA approved a generic version of the drug, which is manufactured by GenBioPro. The drug is also manufactured by other companies around the globe.

When the FDA first approved the pill in 2000, the recommended dosage of mifepristone was higher, 600 mg, compared with the current 200 mg. Studies over time showed the lower dose is effective.

Initially, the FDA also required three doctor office visits, on days one, three, and 14 after taking the pill. Prescribers had to be licensed physicians and the drug had to be dispensed in person at a medical facility. The pill was approved to be prescribed within 49 days of gestation, or seven weeks.

By 2016, after evaluating safety data, the FDA modified prescribing requirements, extending the prescription period to up to 70 days of pregnancy, or 10 weeks. It reduced the number of required office visits to one, between seven and 14 days of taking the pill, and the prescriber no longer had to be a physician. Still, mifepristone was not available at brick-and-mortar pharmacies for patients who had a prescription, nor was it available via telemedicine.

But the onset of the COVID-19 pandemic in 2020, which closed many practices and limited in-office doctor visits, changed that.

Mifepristone prescription after COVID-19 and overturn of Roe v. Wade

In December 2021, the FDA reviewed mifepristone’s long-standing safety data and decided to remove the in-person dispensing requirements, expanding access to telehealth visits in states where abortion isn’t banned. The pill can also be mailed to patients since providers no longer have to dispense the pills in person.

It also allowed brick-and-mortar pharmacies that obtain certification from manufacturers to dispense the drug to people in person or through mail with a prescription.

So far, 18 independent brick-and-mortar pharmacies are dispensing mifepristone, and larger drugstore chains may soon join their ranks.

It’s important to note that since approving mifepristone, the FDA has required prescribers to be certified — which means they have to register with the drugmaker. Pharmacies too need to be certified. Advocates say this requirement further limits who can distribute the drug.

In June 2022, the U.S. Supreme Court overturned Roe v. Wade, striking down the constitutional right to abortion and allowing individual states to decide on access to abortion. Since the decision, 14 states have banned abortion altogether. Those bans apply to both surgical and medication abortions.

Misoprostol and misoprostol-only abortions

The second pill used in the two-pill regimen for medication abortion is misoprostol. The pill is approved by the FDA to prevent stomach ulcers in people at high risk of developing them. It was first approved in 1988.

Even though the FDA hasn’t approved it for medication abortion, misoprostol is used off-label as part of the approved two-pill regimen for medication abortion.

Off-label use means health care providers prescribe a drug for diseases or conditions for which it’s not approved by regulatory bodies such as the FDA. They do so when they deem its use is medically appropriate for the patient.

It is also used worldwide for medication abortion, medical management of miscarriage, induction of labor, and treatment of postpartum bleeding. The drug causes the uterus to cramp and expel pregnancy tissue.

The pill can be used alone for medication abortion.

The World Health Organization has endorsed the use of misoprostol-only for ending a pregnancy in parts of the world where mifepristone is not available. Studies have shown the regimen is safe and effective, although it may have more side effects compared with the two-medication regimen.

A study published in JAMA Network Open in October 2023 finds that misoprostol alone is highly effective in self-managed medication abortions.

Abortion with misoprostol alone is rare in the U.S. but the a legal ban on mifepristone could have made it it the only option for some individuals, she says.

“What our study adds is that under the worst-case scenario in which mifepristone is removed, it doesn’t mean that there’s a ban on medication abortion,” says Ruvani Jayaweera, an epidemiologist and research scientist at Ibis Reproductive Health, a nonprofit organization that conducts social science research primarily on access to abortion and contraception around the world. “Our hope is that this study provides assurance to providers and people who are using misoprostol alone, whether it’s in a clinic-based setting or a telehealth setting or a self-managed setting, about the effectiveness of this method.”

Accessing abortion pills

Abortion pills are prescription medications in the U.S. Individuals in states where abortion is still legal can obtain them from licensed providers in person or via telehealth.

Abortion is currently banned in 14 states. Eleven states have laws limiting abortion between six and 22 weeks. Twelve of the 36 states where abortion is available have restrictions on prescribing medication abortion via telehealth, according to the Kaiser Family Foundation.

In response, activists have created networks of support to help individuals access abortion pills, explains Carrie N. Baker, a contributing editor to Ms. Magazine and professor at Smith College who studies and teaches courses on gender, law and public policy.

“The mainstream press is not adequately paying attention to what’s happening in the United States with regard to the underground network of abortion pill access,” says Baker, who has a forthcoming book on the history and politics of abortion pills in the United States.

These networks have also existed to help individuals around the world.

Europe-based Aid Access mails the medication abortion regimen — mifepristone and misoprostol — to all 50 states, regardless of abortion restrictions. There are other U.S.-based services, including Plan C, which provides people with available options to get abortion pills based on the state they live in.

In a November 2022 research letter published in JAMA, Aid Access reported that after the U.S. Supreme Court overturned Roe v. Wade, the average daily requests for telemedicine services for medication abortion increased from 82.6 to 231.7.

In the U.S., prescribing abortion medications via telehealth is nuanced based on state abortion laws.

For instance, U.S.-based virtual reproductive and sexual health clinic Hey Jane and online pharmacies like Honeybee can provide care and ship the pills to people in states where abortion is not banned. In all states, people may obtain medication abortion from alternative telemedicine services, online websites, or community networks, though the legal risk of each of these options may differ depending on the state. Services like ReproLegal Helpline help guide individuals on laws in their state, Jayaweera says.

Also, physicians in states that have passed shield laws can also prescribe medications via telemedicine to people in states where abortion is banned. So far, several states including Washington, Colorado, Massachusetts, Vermont, New York and California have passed telemedicine shield laws for health providers.

Abortion shield laws “seek to protect abortion providers, helpers, and seekers in states where abortion remains legal from legal attacks taken by antiabortion state actors,” according to a review article published in The New England Journal of Medicine in March 2023. Seven states so far have enacted a shield law since the overturn of Roe v. Wade.

But it’s important to know and note that those laws don’t protect individuals, Jayaweera says.

“One of the things to be especially sensitive to is with telemedicine or online models is that even if the risk is very much minimized for the provider, the legal risk falls on the individual in restricted states,” she says, underscoring the importance of educating individuals about those risks during counseling.

Self-managed abortion

Self-managed abortion is when individuals use medication abortion without medical supervision, ordering pills via telehealth, online pharmacies, mail or in-person.

Worldwide, most medication abortions are self-managed, Jayaweera says.

As a reminder, although the drugs are shown to be safe and effective, the individuals who use self-managed abortion may face legal risks, explain Drs. Daniel Grossman and Nisha Verma in a viewpoint published in JAMA in November 2022.

“Resources like the If/When/How legal helpline may be useful for patients and clinicians who are trying to understand their legal risks related to self-managed abortion. Patients requesting emotional support could be connected with resources that provide free confidential talk lines,” the authors write.

Worldwide, 22 countries ban abortion altogether, according to the Center for Reproductive Health, a global advocacy organization, and many others restrict it. This has given rise to safe abortion hotlines and “accompaniment groups” of people who have training in abortion counseling for individuals who are using medication abortion.

They also “provide a lot of empathetic counseling throughout the process and provide people with additional assurance and support and to help them understand if what they are experiencing is normal, or if they need to seek care,’” says Jayaweera.

She was part of a research team that found the outcomes of self-managed abortions were comparable to the ones performed under clinical supervision. The study, among others, contributed to the World Health Organization revising its guidelines last year to add self-managed abortion in early pregnancy to its abortion guidelines.

National organizations including the American Medical Association and the American College of Obstetricians and Gynecologists oppose the criminalization of self-managed abortion because it deters patients from seeking care when complications occur, write Dr. Lisa H. Harris and Daniel Grossman in a review article published in the New England Journal of Medicine in March 2020.

“Given the safety of the combination of mifepristone and misoprostol for self-managed abortion, the biggest danger to patients may be legal prosecution,” the study authors add. “Doctors and health care institutions must develop strategies that favor effective, compassionate clinical care over legal investigation of patients.”

A note on abortion ‘reversal’ pills

On Oct. 30, a judge in Kansas blocked a state law that requires health care providers to tell patients that medication abortion can be reversed, despite a lack of scientific evidence. A few days earlier, in Colorado, a federal judge ruled that a Catholic medical center can’t be stopped from offering medication abortion “reversal” treatment.

So-called abortion medication “reversal” treatment involves taking a dose of the hormone progesterone in an attempt to stop the effects of mifepristone, but it’s important for journalists to inform their audiences that “reversal” of medication abortion is not supported by science. (The Associated Press recommends using quotation marks in order to stress the lack of scientific evidence.) The American College of Obstetricians and Gynecologists has publicly stated that it does not support the treatment.

“Despite this, in states across the country, politicians are advancing legislation to require physicians to recite a script that a medication abortion can be ‘reversed’ with doses of progesterone, to cause confusion and perpetuate stigma, and to steer women to this unproven medical approach,” reads a statement on ACOG’s website. “Unfounded legislative mandates like this one represent dangerous political interference and compromise patient care and safety.”

Between 2012 and 2021, 14 states had enacted abortion “reversal” laws, according to a February article in the American Journal of Public Health.

“States largely use explicit language to describe reversal, require patients receive information during preabortion counseling, require physicians or physicians’ agents to inform patients, instruct patients to contact a health care provider or visit abortion pill reversal resources for more information, and require reversal information be posted on state-managed Web sites,” the authors write. “Reversal laws continue a dangerous precedent of using unsound science to justify laws regulating abortion access, intrude upon the patient‒provider relationship, and may negatively affect the emotional and physical health of patients seeking [a medication abortion].”

A 2020 randomized controlled study of medication abortion reversal, involving 40 patients, ended early because of safety concerns for 12 participants. Some of the women in the study received 400 mg of progesterone after taking mifepristone to “reverse” the abortion. Others were given a placebo after taking mifepristone. Three patients – one had taken progesterone and two had received placebo – had severe hemorrhage and required ambulance transport to the hospital, the authors write.

“We could not estimate the efficacy of progesterone for mifepristone antagonization due to safety concerns when mifepristone is administered without subsequent prostaglandin analogue treatment. Patients in early pregnancy who use only mifepristone may be at high risk of significant hemorrhage,” they write in the study.

A March 2023 systematic review of four studies finds, “based mostly on poor-quality data, it appears the ongoing pregnancy rate in individuals treated with progesterone after mifepristone is not significantly higher compared to that of individuals receiving mifepristone alone.”

A 2015 systematic review of 11 studies on medication abortion reversal during the first trimester of pregnancy finds “evidence is insufficient to determine whether treatment with progesterone after mifepristone results in a higher proportion of continuing pregnancies compared to expectant management.”

Research roundup

The following roundup of systematic reviews examines the safety and effectiveness of medication abortion. They are listed by publication date. The list is followed by additional research and reporting resources.

Effectiveness and Safety of Misoprostol-Only for First-Trimester Medication Abortion: An Updated Systematic Review and Meta-Analysis
Elizabeth G. Raymond, Mark A. Weaver, and Tara Shochet. Contraception, November 2023.

A review of 49 published studies, including a total of 16,354 patients, finds misoprostol-only is effective and safe for the termination of first-trimester pregnancy, especially when mifepristone is not available.

“Technically An Abortion”: Understanding Perceptions and Definitions of Abortion in the United States
Alicia J. VandeVusse, et al. Social Science & Medicine, October 2023.

The study is based on in-depth interviews of 64 cisgender women and 2009 participants in an online survey. Individuals were asked about their understanding of pregnancy outcomes including abortion and miscarriage. “The blurred boundaries between different types of pregnancies and their outcomes emphasize the differences in people’s notions of what constitutes an abortion,” the authors write. “It shapes how abortion stigma can arise across different pregnancy outcomes, as well as people’s own perceptions of the care they have sought, the legality of this care, and their experience in accessing it. Understanding how people construct boundaries around abortion allows for more effective healthcare messaging and advocacy, which is increasingly relevant as legal restrictions on abortion mount while telemedicine and medication abortion become more widely available to some.”

Requests for Self-managed Medication Abortion Provided Using Online Telemedicine in 30 US States Before and After the Dobbs v Jackson Women’s Health Organization Decision
Abigail R. A. Aiken, et al. JAMA, November 2022.

The authors analyze anonymized requests for abortion pills to Aid Access, a Europe-based abortion pill provider. They analyzed the requests before Roe v. Wade was overturned, after the decision was leaked, and after the decision was announced. They find that each of the 30 states from which requests came, regardless of abortion policy, showed a higher request rate after the leak and announcement compared to before. The largest increases were in states that enacted total bans on abortion.

Systematic Review of the Effectiveness, Safety, and Acceptability of Mifepristone and Misoprostol for Medical Abortion in Low- and Middle-Income Countries
Ian Ferguson and Heather Scott. Journal of Obstetrics and Gynaecology Canada. April 2020.

A review of 36 studies, including a total of 25,385 medical abortions, finds the combination of mifepristone and misoprostol is “highly effective, safe, and acceptable to women in low- and middle-income countries, making it a feasible option for reducing maternal morbidity and mortality worldwide.” Among a group of 17,381 women, 0.8% required hospitalization.

Telemedicine for Medical Abortion: A Systematic Review
M. Endler, et al. British Journal of Obstetrics and Gynaecology, March 2019.

A review of 13 studies, mostly based on self-reported data, finds the rates of complete abortion, hospitalization, and blood transfusion after abortion through 10 weeks of pregnancy were at similar levels to those reported after in-person abortion care in the published studies.

First-Trimester Medical Abortion with Mifepristone 200 mg and Misoprostol: A Systematic Review
Elizabeth G. Raymond, Caitlin Shannon, Mark Weaver, and Beverly Winikoff. Contraception, January 2013.

A review of 87 studies, including a total of 47,283 women, finds medical abortion in early pregnancy with 200 mg mifepristone followed by misoprostol is highly effective and safe.

Additional research

Mail-Order Pharmacy Dispensing of Mifepristone for Medication Abortion After In-Person Screening
Daniel Grossman, et al. JAMA Internal Medicine, May 2024.

Pharmacists’ Experiences Dispensing Misoprostol and Readiness to Dispense Mifepristone
Meron Ferketa, et al. Journal of the American Pharmacists Association, October 2023.

Medication Abortion Safety and Effectiveness With Misoprostol Alone
Ruvani Jayaweera, et al. JAMA Network Open, October 2023.

Prior Cesarean Birth and Risk of Uterine Rupture in Second-Trimester Medication Abortions Using Mifepristone and Misoprostol: A Systematic Review and Meta-analysis
Andrea Henkel, et al. Obstetrics & Gynecology, October 2023.

Changes in Induced Medical and Procedural Abortion Rates in a Commercially Insured Population, 2018 to 2022
Catherine S. Hwang, et al. Annals of Internal Medicine, October 2023.

Explaining the Fifth Circuit Court of Appeals Ruling on Mifepristone Access
Molly A. Meegan, JAMA, October 2023.

Effectiveness of Self-Managed Medication Abortion Between 9 and 16 Weeks of Gestation
Heidi Moseson, et al. Obstetrics & Gynecology, August 2023.

Comparison of Mifepristone Plus Misoprostol with Misoprostol Alone for First Trimester Medical Abortion: A Systematic Review and Meta-Analysis
Tariku Shimels, Melsew Getnet, Mensur Shafie, and Lemi Belay. Frontiers in Global Women’s Health, March 2023.

Experiences Seeking, Sourcing, and Using Abortion Pills at Home in the United States Through an Online Telemedicine Service
Melissa Madera, et al. Social Science & Medicine: Qualitative Research in Health. December 2022.

Abortion Surveillance — United States, 2020
Katherine Kortsmith, et al. Morbidity and Mortality Weekly Report, November 2022.

Mifepristone: A Safe Method of Medical Abortion and Self-Medical Abortion in the Post-Roe Era
Elizabeth O. Schmidt, Adi Katz, and Richard A. Stein. American Journal of Therapeutics, October 2022.

Effectiveness of Self-Managed Abortion During the COVID-19 Pandemic: Results From a Pooled Analysis of Two Prospective, Observational Cohort Studies in Nigeria
Ijeoma Egwuatu, et al. PLOS Global Public Health, October 2022.

Increasing Access to Abortion
American College of Obstetricians & Gynecologists, December 2020.

Abortion Pill “Reversal”: Where’s the Evidence
Advancing New Standards In Reproductive Health, July 2020.

A Qualitative Exploration of How the COVID-19 Pandemic Shaped Experiences of Self-Managed Medication Abortion with Accompaniment Group Support in Argentina, Indonesia, Nigeria, and Venezuela
Chiara Bercu, et al. Sexual and Reproductive Health Matters, June 2022.

Medical Abortion in the Late First Trimester: A Systematic Review
Nathalie Kapp, Elisabeth Eckersberger, Antonella Lavelanet, Maria Isabel Rodriguez. Contraception, February 2019.

Continuing Pregnancy After Mifepristone and “Reversal” of First-Trimester Medical Abortion: A Systematic Review
Daniel Grossman, et al. Contraception, September 2015.

Medical Compared With Surgical Abortion for Effective Pregnancy Termination in the First Trimester
Luu Doan Ireland, Mary Gatter, Angela Y. Chen. Obstetrics & Gynecology, July 2015.

Resources

What to Know About Fetal Viability — And Why Some Advocates Want It Out of Abortion Law
Mary Chris Jaklevic. Association of Health Care Journalists’ Covering Health blog, October 2023.

#WeCount: A series of reports by the Society of Family Planning aiming to capture the shifts in abortion volume by state and month following the Supreme Court decision to overturn Roe.

History and Politics of Medication Abortion in the United States and the Rise of Telemedicine and Self-Managed Abortion
Carrie N. Baker. Journal of Health Politics, Policy and Law, August 2023.

Mifepristone U.S. Post-Marketing Adverse Events Summary through 12/31/2022
Food and Drug Administration

Questions and Answers on Mifepristone for Medical Termination of Pregnancy Through Ten Weeks Gestation
Food and Drug Administration

Key Facts on Abortion in the United States
Usha Ranji, Karen Diep and Alina Salganicoff. Kaiser Family Foundation, August 2023.

The Availability and Use of Medication Abortion
Kaiser Family Foundation, June 2023.

A Review of Exceptions in State Abortions Bans: Implications for the Provision of Abortion Services
Kaiser Family Foundation, May 2023.

State Requirements for the Provision of Medication Abortion
Kaiser Family Foundation, April 2023.

Are Abortion Pills Safe? Here’s the Evidence.
Amy Schoenfeld Walker, Jonathan Corum, Malika Khurana, and Ashley Wu. The New York Times, April 2023.

Abortion Care Guideline
World Health Organization, March 2022.

Center for Reproductive Rights provides a global view of abortion.

Abortion Facility Database by Advancing New Standards in Reproductive Health, based at the University of California San Francisco, is a research program that informs the most pressing debates on abortion and reproductive health.

The post Abortion pill mifepristone: An explainer and research roundup about its history, safety and future appeared first on The Journalist's Resource.

“For over 20 years, Supreme Court Justice Clarence Thomas has been treated to luxury vacations by billionaire Republican donor Harlan Crow.

He goes on cruises in far-flung locales on Crow’s yacht, flies on his private jet and keeps company with Crow’s powerful friends at the billionaire’s private resort.

The extent of Crow’s largesse has never been revealed. Until now.

-Lede to “Clarence Thomas and the Billionaire,” by Joshua Kaplan, Justin Elliott and Alex Mierjeski

In April 2023, ProPublica published the first story in its investigative series exposing a lack of ethics oversight for U.S. Supreme Court justices, some of whom received expensive gifts and worldwide vacations from well-heeled individuals — which meant private access to justices for those wealthy benefactors and their friends. The series provided rare, behind-the-scenes details of those interactions and prompted historic reforms on the nation’s high court.

The series begins covering the personal relationship between Justice Clarence Thomas and Harlan Crow, a real estate billionaire Thomas met three decades ago, according to ProPublica reporters Joshua Kaplan, Justin Elliott and Alex Mierjeski.

Those trips meant Thomas was in contact with powerful corporate executives, including from Verizon and PricewaterhouseCoopers, and political activists, such as “Leonard Leo, the Federalist Society leader regarded as an architect of the Supreme Court’s recent turn to the right,” the reporters write.

“By accepting the trips, Thomas has broken long-standing norms for judges’ conduct, ethics experts and four current or retired federal judges said,” the reporters write.

Crucially, those trips were not listed among Thomas’ annual financial disclosures, even though gifts worth over $415 usually must be reported, the reporters found. Despite such disclosure rules, before the ProPublica investigation the Supreme Court did not have a formal ethical code of conduct.

The private jet flights and yacht trips in particular should have been disclosed, the investigation finds. Thomas’ “failure to report the flights appears to violate a law passed after Watergate that requires justices, judges, members of Congress and federal officials to disclose most gifts,” according to two ethics experts the reporters spoke with.

Crow “has denied trying to influence the justice but has said he extended hospitality to him just as he has to other dear friends,” the reporters write.

Among other findings from the investigation:

• Crow paid for boarding school tuition running more than $6,000 a month for a boy Thomas said he was raising “as a son.” According to a former school administrator, “Crow paid Martin’s tuition the entire time he was a student here, which was about a year,” the reporters write.
• A July 2008 “luxury fishing vacation” Justice Samuel Alito took with GOP billionaire Paul Singer, ProPublica reports, who paid for Alito’s private jet and whose firm later had cases before the Supreme Court. Alito did not report the jet flight in annual disclosures, according to the investigation.
• Alito’s lodging during that trip was covered by Robin Arkley II, owner of a mortgage company who had “recently acquired the fishing lodge,” the reporters write. Alito did not report the lodging in annual disclosures, they found.
• Thomas attended two donor summits hosted by the Koch network, the political organization founded by billionaires Charles and David Koch, which put Thomas in “the extraordinary position of having helped a political network that has brought multiple cases before the Supreme Court,” the reporters write.
• Crow and wife Kathy paid for a 7-foot-tall bronze statue of Thomas’ eighth-grade teacher, unveiled at an October 2021 ceremony in a New York City suburb at which Thomas spoke.

As a result of the yearlong investigation:

• The Senate Judiciary Committee last May held a full hearing on Supreme Court ethics reform and, in November, subpoenaed Leo and Crow to obtain information.
• The Supreme Court adopted its first-ever code of conduct in November 2023.
• Nonpartisan ethics watchdogs, including the Campaign Legal Center and the Project on Government Oversight, have called on the Department of Justice to investigate Thomas for failing to disclose the trips Crow provided.
• Another 40-plus watchdog groups have called for Thomas and Alito to recuse themselves from cases relating to big-time political donors. The justices have rejected such recusal.

For Kaplan, Elliott and Mierjeski, a big takeaway from the investigation is that courts at all levels need more scrutiny from journalists.

“One of the lessons of this has been that the courts are just totally under-covered as an institution, both at the federal level all the way down to local and state [levels],” Elliott says. “One piece of advice would just be to start adding judges and courts, at whatever the relevant level is, to the mental list of things that should be covered.”

Here are seven more tips for covering courts the ProPublica reporters shared with The Journalist’s Resource.

1. Think of a public figure’s entourage as a huge source pool.

It takes a village to move a public figure from point A to point B.

“It’s not like a normal person going on a trip to Europe or something,” Elliott says.

This is especially true if the public figure travels on private planes and boats, which require specialized crew to operate. For example, Crow’s yacht, the Michaela Rose, often operates with a staff of a couple dozen, the ProPublica reporters found.

“We decided to try to talk to some of those people,” Elliott says. “So we started just sort of cold calling.”

2. Being an outsider can be an advantage, but be ready to play a ‘numbers game’ with cold calls.  

Kaplan says there are “extremely talented court reporters” with well-connected sources who focus on explaining Supreme Court decisions — but the ProPublica reporting team “did not start with any sources at all,” he says.

That wasn’t necessarily a detriment. To a reporter who regularly covers Supreme Court decisions, the staff of a yacht a Supreme Court justice had boarded might not have much to offer. But it was those seemingly tertiary sources, not directly involved with the regular functioning of the court, who were critical to telling the story of who the justices were spending time with while off the bench.

“We had to kind of start from scratch and get creative with the sort of people we were talking to,” Kaplan says. “We were talking almost exclusively to people that were very far removed from Washington, very far removed from the halls of national politics. And that brought us, over the course of the year, to some kind of relatively novel places.”

Those service workers — on the yacht, at the Adirondacks resort, at the Alaskan fishing lodge and other places — were “the absolute backbone of this,” Kaplan says. “It wasn’t a situation where any one person had the keys to the castle and were able to tell us everything that had happened, but a lot of people had some really valuable piece of the puzzle.”

Kaplan estimates that over the course of reporting the series, the team placed over a thousand phone calls.

“It really is a numbers game,” adds Elliott. “Many, many, many, many people said no to us, or just didn’t return our calls.”

3. Build trust with sources by articulating the big vision of your investigation, and by making sure they understand the concepts of “on the record,” “off the record” and “on background.”

Building trust is key when interviewing sources who don’t have experience talking with reporters. The ProPublica team found the sources they spoke with were by and large persuaded by the bigger picture of the investigation.

“Regardless of where any particular source might fall in the political spectrum, there’s, I think, a very clear public interest case that we should know who is getting access to some of the most powerful government officials — Supreme Court justices —  in the country,” Elliott says.

He adds “it would have been the same case that we were making if we were writing about Elana Kagan or Sonia Sotomayor,” referring to two justices usually regarded as being more ideologically liberal than conservative.

Likewise, being patient and explaining journalistic concepts that define how the information they share will be used — on the record, on background, or off the record, for example — is a great way to get sources to open up.

“Most people, when they get a call, they’ve never spoken to a reporter before,” Kaplan says. “They don’t understand the seriousness with which one takes protecting anonymity. And so, just taking the time to get to know people and to earn that trust, I think it’s critical.”

4. Take advantage of teamwork by divvying the labor.

When embarking on an investigation that will involve hundreds of phone calls and reading reams of records, dividing the work among a small group can save time and allow for collaborative strategizing along the way.  

“The benefit of the dynamic was that while these guys were making calls, I had time to kind of noodle around,” Mierjeski says. “Some of the findings in those stories just came from the ability to spend time searching and fishing.”

With Elliott and Kaplan focusing on contacting sources, Mierjeski was able to track down, for example, coverage in Catholic Cemetery magazine of the statue of Thomas’ teacher, which Crow and his wife paid for, the reporters found. 

There can also be mental health benefits to teamwork, in terms of reporters encouraging each other to press ahead in the face of obstacles.

“For me it would be difficult, as a psychological proposition, to not be sort of paralyzed by the crushing disappointment of failure if you’re just sitting at home alone having seven people in a row ask you how you got their number and then hang up on you,” Elliott says. “It’s sort of like going to the gym — it works better if you have a partner.”

Elliott, Kaplan and Mierjeski were continually communicating, Kaplan says, which was hugely helpful for real-time brainstorming. One example: The realization that polo shirts with the logo for Crow’s yacht could lead to more information about when and where Thomas was on the yacht.

“I remember it was like Friday night at 10 p.m. that one of us realized the Michaela Rose, the yacht logo on the shirts, could be a way to find other potential trips,” Mierjeski says. “The Signal chat was just blown up.”

Elliott adds, “We started looking for every single picture we could find of Justice Thomas wearing a polo shirt to see if there was a logo on it.”

5. Seek visual evidence, especially if a key source won’t talk.

The photos the reporters obtained of Thomas on trips with Crow and Alito holding a fish in Alaska were “very helpful in establishing things, but also, I think, really resonated with people and helped these stories get a wider reach,” Kaplan says.

The photographs were “more powerful than probably any prose we could come up with,” Elliott adds. The reporters found some of them on social media sites, like Instagram and Facebook. The pictures were not just illustrative but were important evidence of places the justices had been.

Alito responded to questions from the ProPublica reporters indirectly — in a Wall Street Journal op-ed.

Thomas, however, was silent until the first story in the series published.

“It wasn’t like Justice Thomas was going through our very detailed questions that we sent and saying, ‘You have this right, you have this wrong,’” Elliott says. “It was just like, ‘No comment.’ Which can be a sensitive position to be in as a reporter because if you’re getting no engagement, you just have to be right.”

6. Tap into university archives.

The ProPublica team examined numerous archival documents while reporting the series, including from congressional and judiciary archives.

Also among them: university archives, which are often collections of documents and pictures by and about public figures produced throughout their careers. The team early in reporting the series visited the collection of former Justice Antonin Scalia, donated to the Harvard Law School Library after Scalia died in 2016. Many parts of the Scalia archive remain sealed — but photographs weren’t sealed, Kaplan says.

“From the chicken scratch scrawl on the back of some of these photos, we started learning about some of the people that had taken Scalia to an Alaska trip — reporting those out brought us to Alito,” he says.

Kaplan adds: “Figuring out what past or present officials have archives that are at least partially in a university, there’s a pretty good chance you’ll be the first reporter to have ever looked at them. And they might have some gold in there.”

Start by looking for archives from universities a public figure has attended or has some other longstanding affiliation with, such as a professorship.

7. Search court documents, which are likely to be public record, for evidence.

When covering a story that deals with private interactions or a government entity not subject to public records laws, look for court cases. Unless a judge seals a case or portions of it, such records often are subject to public inspection.

That’s how the ProPublica team was able to show in their reporting that Crow had paid tuition on behalf of the boy Thomas was raising. The private school had been involved in a bankruptcy and later dissolved, but for a time was required to file financial statements to a federal court. The reporters found those statements through the Public Access to Court Electronic Records system, or PACER, an online federal courts document repository.

“Whoever was filing those statements seems to get sloppier and sloppier about redacting them as the case was going on,” Elliot says. “We came across a financial statement from the school that actually showed a wire of money from one of Crow’s companies to the school.”

In July 2009, the company “wired $6,200 to the school that month, the exact cost of the month’s tuition,” the reporters write.

Read the stories

Clarence Thomas and the Billionaire

Clarence Thomas Had a Child in Private School. Harlan Crow Paid the Tuition.

Justice Samuel Alito Took Luxury Fishing Vacation With GOP Billionaire Who Later Had Cases Before the Court

Clarence Thomas Secretly Participated in Koch Network Donor Events

A ‘Delicate Matter’: Clarence Thomas’ Private Complaints About Money Sparked Fears He Would Resign

The Judiciary Has Policed Itself for Decades. It Doesn’t Work.

The post How they did it: ProPublica investigation unveils ethics scandals at the Supreme Court appeared first on The Journalist's Resource.

For nearly four decades now, a federal law known as the Emergency Medical Treatment and Labor Act, or EMTALA, has given Americans the right to receive care at emergency departments, regardless of income or insurance status. The law applies to all kinds of emergencies, including pregnant people in labor, or those for whom an abortion may be medically necessary to preserve their health or save their life.

Since the U.S. Supreme Court struck down the constitutional right to abortion in June 2022, some experts have worried that EMTALA would clash with states that restrict or ban abortions. So far, two states — Texas and Idaho — have ongoing lawsuits with the federal government, claiming their state bans and restrictions on abortion take precedence over EMTALA. And on January 5, the Supreme Court said it would consider Idaho’s case, which centers on the relationship between EMTALA and the state’s abortion ban.

Legal experts worry that if the Supreme Court rules in favor of Idaho and allows states to shape their own laws for pregnancy emergencies without regard to EMTALA, then the states could apply the same logic to all other forms of emergency medical care that currently covered under the federal emergency law.

“So, states could start carving out HIV care, or mental health, or serious and chronic conditions that they deem too futile or not worth the time and energy of emergency department,” says Sara Rosenbaum, a professor emerita of health law and policy at George Washington University’s Milken Institute School of Public Health, who has written extensively about EMTALA.

Through memoranda and various efforts, federal health officials have emphasized that EMTALA takes priority over state laws.

Most recently, on January 22, the 51^st anniversary of Roe v. Wade, the Department of Health and Human Services and the Centers for Medicare & Medicaid Services introduced new resources for the public and health providers to learn about their rights to receive emergency medical care under EMTALA. The announcement was part of a wider effort by the White House to strengthen Americans’ access to contraception, medication abortion and emergency medical care.

The Department of Health & Human Services has issued other notices about the application of EMTALA, including a memorandum in September 2021 after a Texas abortion ban case, in July 2022 after the overturning of Roe and following an executive order by President Joe Biden, and in May 2023 following the investigation of two hospitals in Missouri and Kansas that violated EMTALA.

“If a physician believes that a pregnant patient presenting at an emergency department is experiencing an emergency medical condition as defined by EMTALA and that abortion is the stabilizing treatment necessary to resolve that condition, the physician must provide that treatment,” states a Biden administration memorandum in July 2022. “When a state law prohibits abortion and does not include an exception for the life of the pregnant person — or draws the exception more narrowly than EMTALA’s emergency medical condition definition — that state law is preempted,” by the federal law.

Abortion rights advocates have filed lawsuits over several states’ strict abortion bans, Axios reported in September. Rosenbaum said she’s preparing an amicus brief on behalf of the American Public Health Association and more than 100 law and policy scholars before the Supreme Court makes its decision on Idaho’s case.

EMTALA in brief

EMTALA was introduced in 1985 with bipartisan support in response to a spate of “patient dumping” cases, which refers to emergency departments refusing care to patients who are indigent and have no health insurance, including patients who were in labor. President Ronald Reagan signed it into law in 1986, when Roe v. Wade was still law of the land.

Under EMTALA, hospitals must examine and stabilize patients, regardless of insurance status, citizenship or other factors.

“It essentially is the closest thing we have in this country to a human rights statute,” says Rosenbaum.

The law applies to all hospitals with emergency departments that participate in Medicare (only about 1% of non-federal community hospitals don’t participate in Medicare, according to the American Hospital Association). The Department of Health and Human Services oversees and enforces EMTALA.

Physicians and hospitals can be fined up to $50,000 per incident of failing to comply with EMTALA and are at risk of exclusion from Medicare and Medicaid programs for repeated violations. Physicians’ malpractice insurance does not cover EMTALA violations.

While EMTALA is an important safety net for people without health insurance, it doesn’t guarantee free care, and patients may still be billed, as the authors of a 2018 study published in AIMS Public Health explain.

Emergency departments and pregnancies

EMTALA covers not only conditions that threaten life but also conditions that can impose severe and long-lasting health impacts. That includes pregnancy-related complications and emergencies that may require medically necessary and life-saving abortions, even though abortion is not specifically mentioned in the law.

The majority of people who have emergencies related to pregnancy go to an emergency department, according to a 2023 study published in the American Journal of Emergency Medicine. At least a third of pregnant women go to an emergency department at some point during their pregnancy, studies have shown and up to 15% suffer from a potentially life-threatening condition during the first trimester.­

A 2020 study of 2.8 million women in Ontario, Canada, who were pregnant between 2002 and 2017, finds that 40% visited an emergency department, mostly during the first trimester or soon after giving birth.

The most common conditions during the first trimester were threatened abortion (the technical term for vaginal bleeding at less than 20 weeks of gestation), hemorrhage (severe bleeding), and spontaneous abortion (miscarriage), according to the study.

Other emergency medical conditions involving pregnant patients may include but are not limited to ectopic pregnancy — which is when a fertilized egg grows outside of the uterus and can be a life-threatening emergency, complications of pregnancy loss, or high blood pressure conditions such as severe preeclampsia.

Dr. Glenn Goodwin, an emergency physician in Florida, says at every shift there’s a first-trimester pregnant patient who’s bleeding.

“I’d say probably 10% of our ER visits are somewhat OB-related, whether it’s a first-trimester bleed, or whether it’s abdominal pain in pregnancy,” Goodwin says. “How many of those cases are actually life-threatening? Very, very few.”

EMTALA and state abortion bans

Since the end of Roe in June 2022, 14 states have enacted a total ban on abortion, four states ban abortion after six or 12 weeks, and seven after 15 or 22 weeks. Abortion is legal, including beyond 22 weeks, in 25 states and the District of Columbia, according to the KFF, a nonpartisan health policy research organization.

What leads to confusion among health providers is the vague language of the law in states that have abortion bans.

For instance, many states with strict abortion bans have exceptions to “prevent the death” or “preserve the life” of the pregnant person, according to an analysis by KFF.

Arkansas, Idaho, Mississippi, Oklahoma and South Dakota have exceptions to save the life of the pregnant person, but do not have any exceptions for protecting their health.

Other states with abortion bans have exceptions that consider protecting the health of the pregnant person — not just their life — permitting abortion care when there’s a serious risk of substantial and irreversible impairment of a major bodily function. The Texas abortion ban says physicians must determine whether an abortion is necessary based on their “reasonable medical judgment.”

“These exceptions are not clear how much risk of death or how close to death a pregnant patient may need to be for the exception to apply, and the determination is not explicitly up to the physician treating the pregnant patient,” according to the KFF analysis.

A KFF 2023 National OBGYN survey, including 569 physicians, finds more than half of those who practiced in states that banned abortion were concerned about their legal risk when deciding on the necessity of abortions.

In an opinion piece published in the Annals of Internal Medicine in January 2023, Dr. Eli Y. Adashi and I. Glenn Cohen write, “physicians in restrictive states face extremely difficult choices between protecting pregnant persons and the threat of legal sanctions.”

Out of frustration with confusion in his own emergency department, Goodwin, the Florida emergency physician, set out to do a study in 2022 on state abortion laws and whether they conflicted with EMTALA.

He and his co-authors find that the overturning of Roe “does not prohibit termination of pregnancy in the setting of life-threatening conditions to the mother, including ectopic pregnancy, preeclampsia, and others,” but they recommend that “physicians be mindful of the rapidly-evolving laws in their particular state, and to also practice in accordance with Emergency Medical Treatment and Active Labor Act (EMTALA). Patient safety must be prioritized.”

Goodwin completed his study before the Supreme Court said that it will consider whether EMTALA takes priority over Idaho’s restrictive abortion ban. The oral arguments are scheduled for April.

Before states like Florida passed a 15-week abortion ban except for saving the patient’s life, things were much clearer for emergency physicians like Goodwin.

“We never really considered any legal ramification at all,” Goodwin says. “The patient came in and all of our brains were just focused on the medical aspect of care. Since this law change, we have to consider some of the legal aspects of it.”

He gave the example of a patient who’s 15 weeks pregnant, has been bleeding for days and is miscarrying, but still has a fetus with a heartbeat.

“At that point, the conventional medical treatment will be to just give an abortive medication, because there’s really no chance of this fetus living and the mother is bleeding,” he says. “And you don’t want her to continue bleeding because that would be a risk.”

But Florida’s 15-week abortion ban makes the decision complicated. For Goodwin, whose hospital doesn’t have a labor and delivery unit, the solution would have been to transfer the patient to another hospital that has a labor and delivery unit, instead of proceeding with the standard treatment in his own emergency room.

Goodwin also worries that the ongoing legal battles will further reduce the number of medical students who will choose to specialize in Ob/Gyn.

“You have Ob/Gyn hopefuls saying they don’t want to train in states like Mississippi because they’re not going to learn how to do an abortion,” Goodwin says. “And however you feel about abortion, it is kind of a crucial aspect of Ob/Gyn training because there are times where you have to do it as a life-saving procedure.”

An April 2023 report by the Association of American Medical Colleges shows that the number of applicants for Ob/Gyn residencies dropped in all states in 2023, but had the steepest decline in states with abortion bans. In those states, applications dropped by 10.5% compared with the previous year.

To help journalists prepare to cover the upcoming Supreme Court hearing, we’ve gathered several research studies on EMTALA, including analyses of hospitals’ general compliance issues since the law was passed. The studies were published both before and after the overturning of Roe.

Research roundup

A National Analysis of ED Presentations for Early Pregnancy and Complications: Implications for Post-Roe America
Glenn Goodwin, et al. The American Journal of Emergency Medicine, August 2023.

The study: The study, published before the Supreme Court took up EMTALA, uses data from the National Hospital Ambulatory Medical Care Survey, from 2016 to 2020, to evaluate trends in pregnancy-related emergency department visits that could be impacted by restrictive abortion laws. The dataset included 4,556,778 pregnancy-related emergency department visits in the U.S. The authors also analyzed the state laws.

The findings: Nearly 80% of the visits in the study were for patients between 18 to 34 years old. This age group also made up 76% of visits for pregnancy complications, including ectopic pregnancies, and 80% of visits for miscarriage or threat of miscarriage in early pregnancy. This age group also accounted for all visits for complications following an induced abortion or a failed abortion.

A quarter of the patients were Black and 70% were white. By ethnicity, 27% of the patients were Hispanic.

Almost 71% of the visits were due to complications after an induced abortion occurred in patients who lived in the South. Such visits were also twice as likely to occur in non-metro areas.

Nearly 50% of the patients were covered by Medicaid, compared with about 25% with private insurance. About 10% had no insurance.

The takeaway: Pregnancy-related emergency department visits comprise a significant proportion of emergency care, the authors write. The overturning of Roe “does not prohibit termination of pregnancy in the setting of life-threatening conditions to the mother, including ectopic pregnancy, preeclampsia, and others, but the resultant uncertainty and ambiguity surrounding the constitutional change is leading to an over-compliance of the law, necessarily obstructing reproductive health care,” they write.

Penalties for Emergency Medical Treatment and Labor Act Violations Involving Obstetrical Emergencies
Sophie Terp, et al. The Western Journal of Emergency Medicine, March 2020.

The study: There’s no question that EMTALA applies to active labor, which is the only medical condition — labor — included in the title of the law, the authors write. They review descriptions of EMTALA violation settlements involving labor and other obstetric emergencies, listed on the Office of the Inspector General website between 2002 and 2018.

The findings: Of 232 EMTALA violation settlements, 17% (39) involved active labor and other obstetric emergencies. Settlements involving obstetric emergencies increased from 17% to 40% during the study period. Of those, 18% involved a pregnant minor. Most violations involved failure to screen and/or stabilize the pregnant patient.

Of the 39 cases, the Southeast had the most number of violations — 38%, including eight violations in Florida and five in North Carolina.

The takeaway: “Recent cases highlight the need for hospital administrators, emergency physicians, and obstetricians to evaluate and strengthen policies and procedures related to both screening exams and stabilizing care of patients with labor and OB emergencies, even if the hospital does not provide dedicated OB care,” the authors write.

Complying With the Emergency Medical Treatment and Labor Act (EMTALA): Challenges and Solutions
Charleen Hsuan, et al. Journal of Healthcare Risk Management, November 2017.

The study: Despite the passage of EMTALA in 1986, hospitals continue to violate it, which includes refusing to examine or stabilize patients, or making inappropriate transfers to other hospitals. In the first decade after the law was passed, nearly one-third of U.S. hospitals were investigated for EMTALA violations. “And as of 2011, almost 30 years after the Act was passed, 40% of investigations still found violations,” they write.

The authors explore the reasons for not complying with EMTALA and suggest ways to improve compliance. Their analysis is based on 11 interviews with hospital officials, hospital associations and patient safety organizations that review clinical data on EMTALA violations in Georgia, Kentucky, North Carolina, South Carolina and Tennessee. The South had the highest number of EMTALA complaints at the time, compared with other U.S. regions.

The findings: There were five main reasons for non-compliance: financial incentives to avoid unprofitable patients; ignorance of EMTALA’s requirements; high burned of referral at hospitals that receive EMTALA transfer patients; reluctance to jeopardize relationships with transfer partners by reporting borderline EMTALA violations; and opposing priorities of hospitals and physicians.

The authors propose four ways to improve compliance with EMTALA: align federal and state payment policies with EMTALA; amend EMTALA to permit informal mediation sessions between hospitals to address borderline EMTALA violations; increase the hospital role in EMTALA training and spread information; and increase the role of hospital associations.

Emergency Medical Treatment and Labor Act (EMTALA) 2002-15: Review of Office of Inspector General Patient Dumping Settlements
Nadia Zuabi, Larry D. Weiss, and Mark I. Langdorf. The Western Journal of Emergency Medicine, May 2016.

The study: The Office of Inspector General (OIG) of the Department of Health and Human Services enforces EMTALA. The study examines the scope, cost, frequency and common allegations leading to mandatory settlements against hospitals and physicians for patient dumping. The enforcement actions are listed on the OIG website, where you can find more recent cases.

The findings: Between 2002 and 2015, there were 192 settlements, with fines adding up to $6.4 million. The average fine against hospitals was $33,435 and against physicians was $25,625. 96% of the fines were against hospitals.

The most common settlements were for failing to screen the patient or stabilize them in emergency situations. There were 22 cases of inappropriate transfer to another hospital and another 22 cases for failing to transfer to a facility that could care for the patient. In 25 cases, hospitals failed to accept an appropriate transfer. In 30 cases hospitals turned away patients because their insurance or financial status. Thirteen cases involved a patient in active labor.

Examining EMTALA in the Era of the Patient Protection and Affordable Care Act
Ryan M. McKenna, et al. ASIM Public Health, October 2018.

The study: The authors examine the characteristics of hospitals that violated EMTALA between 2002 and 2015 — before and after the implementation of ACA in 2014 — using the OIG database and matching them with a national hospital database.

The findings: There were 191 EMTALA settlement agreements during the study period, although the analysis included 167 cases after excluding others due to lack of data. Settlements decreased from a high of 46 in 2002 to a low of six in 2015, a decline of 87%. The settlements were most common in hospitals in the South (48%) and urban areas (74%). The average settlement for hospitals was $31,734, adding up to $5,299,500 during the study period.

The takeaway: There was an overall downward trend in violations of EMTALA, even though the study can’t establish that the implementation of ACA caused the downward trend. The authors suggest the reduction in EMTALA violations could be due to two factors: “First, in shifting hospitals’ payer mix away from self-pay, the insurance expansion of the ACA reduces the risk of uncompensated care to systems,” they write. “Second, the ACA helped improve access to health care at facilities other than the ED.”

Additional reading

Will EMTALA Be There for People with Pregnancy-Related Emergencies?
Sara Rosenbaum, Alexander Somodevilla and Maria Casoni. The New England Journal of Medicine, September 2022.

The Enduring Role Of The Emergency Medical Treatment And Active Labor Act
Sara Rosenbaum. Health Affairs, December 2013.

Emergency Medical Treatment and Labor Act: Impact on Health Care, Nursing, Quality, and Safety
Theresa Ryan Schultz, Jacqueline Forbes, and Ashley Hafen Packard. Quality Management in Health Care, March 2024.

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Asian American students were 28% less likely to get into selective U.S. colleges than white Americans with similar test scores, grade-point averages and extracurricular activities, a new working paper suggests.

The disparity is particularly pronounced for students of South Asian descent. Their odds of admission were 49% lower than their similarly qualified white peers, researchers learned after analyzing nearly 700,000 undergraduate applications submitted to a subset of the nation’s most exclusive schools over five years.

U.S. students of East Asian or Southeast Asian ancestry were 17% less likely to be accepted than white U.S. students.

A big factor driving differences in admission rates: selective colleges’ preference for students who are the children of alumni, known as legacy students, coauthors Sharad Goel, a professor of public policy of Harvard Kennedy School, and Josh Grossman, a Ph.D. candidate studying computational social science at Stanford University, told The Journalist’s Resource in a joint interview.

Historically, legacy applicants have tended to be white. When Goel, Grossman and their colleagues looked specifically at applicants with the highest standardized test scores, they discovered almost 12% of white Americans had legacy status, as did about 7% of Hispanic Americans and just under 6% of Black Americans.

High-scoring Asian Americans were least likely to be legacies — about 3.5% were.

“High-scoring white applicants are three to six times more likely to have legacy status than high-scoring Asian American applicants, suggesting white applicants disproportionately benefit from a boost in admission rates afforded to those with legacy status,” the researchers write.

Affirmative action and the ‘Asian penalty’

The paper’s authors are not disclosing the number or names of schools they studied. They do note the institutions have low acceptance rates, meaning they reject most applicants, and high yield rates, indicating the majority of accepted students choose to enroll.

Goel and Grossman say they started studying applicants two years ago with the goal of determining whether there’s merit to longstanding allegations that the country’s most selective institutions appear to set the bar for entry higher for Asian applicants, imposing what’s commonly referred to as the “Asian penalty.”

At the time, two lawsuits challenging race-based affirmative action at Harvard University and the University of North Carolina at Chapel Hill were making their way through the U.S. court system. Students for Fair Admissions, the national organization that brought the lawsuits, alleged the practice gave Black, Hispanic and Native American applicants an edge in the admissions process but harmed Asian applicants.

On June 29, the U.S. Supreme Court prohibited colleges and universities nationwide from considering race or ethnicity when choosing students, except at military academies.

Goel and Grossman urge journalists to help audiences understand how the affirmative action ban and higher education policies that benefit white students are affecting and will affect Asian enrollment. It’s important journalists don’t conflate the two issues, they add.

In addition to raising concerns about prioritizing legacy students, the new paper also raises questions about whether colleges should continue focusing on applicants’ extracurricular activities and strive to draw students from various parts of the country.

The analysis shows Asian Americans participated less often in high school sports and other activities outside the classroom, compared with white Americans. Asian Americans also were less likely to attend high school in rural areas or in less populated states such as Montana, Wyoming and Vermont.

“It’s not affirmative action keeping Asian American students from these selective colleges — it’s things like legacy admissions and geography, sports,” Goel says. “By saying we’re going to value things like legacy status and geographic diversity, we are pretty directly giving a boost to white students. It’s a predictable boost.”

Balancing competing education goals

The new paper, released last week by the National Bureau of Economic Research, builds on earlier scholarship that spotlights ways college admissions practices reinforce racial inequities.

Institutions must balance many competing goals when deciding who to include in a new, incoming class of students, explained education scholar OiYan Poon, who did not participate in this study but has spent more than a decade researching U.S. college admission policies. She is co-director of the College Admissions Futures Co-Laborative at the University of Maryland, College Park.

Poon pointed out that institutional priorities generally include building a successful athletic program, maintaining relationships with alumni and donors, maintaining relationships with high schools, improving the geographic diversity of the student body and balancing the annual budget.

“Note that all of the competing goals I listed inherently privilege white students (e.g., student athletes are nearly 90% white),” she wrote in an email to The Journalist’s Resource.

Examining patterns among applicants

The researchers examined a total of 685,709 applications that 292,795 Asian American and white American students sent to a subset of selective schools through a national postsecondary application platform. They obtained data on applications submitted from the 2015-16 application cycle to the 2019-20 application cycle.

All 292,795 students included in the study graduated from U.S. high schools and, on average, took four Advanced Placement tests, reported completing 3,236 hours of extracurricular activities and earned standardized test scores equivalent to a 32 on the ACT college-entrance exam.

The average ACT score for all U.S. high school graduates in 2021 was 20.3, with a maximum score of 36, according to the  National Center for Education Statistics.

While the dataset does not include colleges’ admissions decisions, the national application portal tracks whether and when high schools use it to send an official transcript to a specific college. The researchers note these transcript submissions are a “highly accurate” indicator a student has enrolled at the school.

As an additional check, the researchers matched a random sample of 5,000 applicants from their study pool to the National Student Clearinghouse database. The Clearinghouse collects enrollment data from higher education institutions across the U.S.

Goel and Grossman say their intention is not to call out specific schools. Instead, they aim to call attention to problematic patterns that appear to be common among colleges and universities that are toughest to get into.

“One of our overarching goals is to improve the admissions process going forward,” Goel says. “We are trying to equip university administrators, policymakers and legislators with the information they need to make these types of choices.” 

Sabina Tomkins, a computational scientist and assistant professor of information at the University of Michigan, and Lindsay Page, the Annenberg Associate Professor of Education Policy at Brown University, also are coauthors of the paper, “The Disparate Impacts of College Admissions Policies on Asian American Applicants.”

Asian Americans and extracurricular activities

Grossman notes that besides legacy preferences, several other admissions practices seem to benefit white Americans to the detriment of Asian Americans. For example, the selective schools he and his colleagues studied appear to exhibit geographic preferences.

The institutions were less likely to admit students from states with large proportions of Asian American applicants such as California and Washington, Grossman and his colleagues write.

Generally speaking, many U.S. colleges and universities seek geographic diversity, aiming to draw students from across the country and globe. Last year, some Ivy League schools started ramping up recruitment in rural America, Christopher Rim, the CEO of an education and college admissions consulting firm in New York City, wrote in Forbes magazine in December.

However, 1% of the Asian American applicants included in this new study graduated from high schools in rural communities, compared with 5% of white Americans, the analysis shows.

A significant emphasis on extracurricular activities, including student clubs and sports, also appears to benefit white Americans over Asian Americans. Asian American students reported participating much less often in extracurricular activities. The median number of hours they reported doing extracurricular activities during their four years of high school was 2,975, compared with 3,384 hours for white students.

When the researchers looked specifically at sports participation, the difference was even bigger. The median number of hours Asian Americans were involved in athletic activities was 240 over four years — less than one-third the median number of hours for white students.

Advice for journalists

Grossman says he and his colleagues aren’t implying selective schools are trying to limit or block Asian Americans. But their analysis does raise questions about equity in college admissions.

He urges journalists to ask college administrators why they continue giving legacy students special treatment.

“The defense a lot of schools provide for legacy admissions is quite vague — it encourages donations and that money is important for students who otherwise couldn’t attend the university [because] they need the financial aid,” Grossman says.

He suggests pressing officials for detailed answers, and investigating whether abandoning legacy preferences would actually hurt colleges or lower-income students.

“Really question schools,” he adds. “If legacy admissions were to be eliminated, how much would they really suffer? And ask donors: Would a donor continue donating if it was eliminated? Is there a substitute that would work?”

Poon, the education scholar, stressed the importance of journalists recognizing that the disparities revealed in this new paper were not caused by affirmative action.

“On the contrary,” she wrote, “I worry that without race-conscious admissions such disparities could widen.”

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This collection of research on alternatives to race-based affirmative action in college admissions, originally published in May 2023, has been updated to include the Supreme Court’s June 29 ruling on the practice.

The U.S. Supreme Court on Thursday struck down race-based affirmative action in admissions at Harvard University and the University of North Carolina at Chapel Hill, effectively banning a longstanding, nationwide practice aimed at improving student diversity at top-ranking colleges and universities.

The ruling will require higher education institutions that give underrepresented minorities an edge in the application process to find new ways to bolster their enrollment of Black, Hispanic and Native American students. Military academies, however, are exempt.

The organization that brought the lawsuits, Virginia-based Students for Fair Admissions, accused Harvard and UNC of discriminating against white and Asian applicants. It sought to eradicate affirmative action in admissions, introduced in the 1960s and 1970s to help historically disadvantaged groups gain access to the most competitive and influential schools.

Although the practice has been challenged in court several times since 1978, the Supreme Court previously upheld the constitutionality of affirmative action policies, so long as student race and ethnicity were among a range of factors considered when evaluating applicants. Admissions officials generally do not consider Asians to be underrepresented minorities because young adults who are Asian are more likely to go to college than young adults from other racial groups.

As the two lawsuits made their way through the court system, higher education administrators investigated race-neutral strategies for recruiting and admitting more minorities. They have looked for insights from the nine states that have banned affirmative action at their public universities, beginning in 1996.

Race-neutral alternatives

Several alternate strategies have shown promise, although researchers estimate their impacts are relatively small. Academic studies have found none are as effective as race-based affirmative action, Zachary Bleemer, an assistant professor of economics at Yale University who studies college admission policies, told The Journalist’s Resource.

“States that have seen affirmative action bans do not offer a silver bullet for universities seeking to maintain racial diversity without race-based affirmative action,” Bleemer wrote in an email.

It’s unknown how many colleges and universities practice affirmative action in admissions because no person or organization tracks that information. Likewise, there are no formal counts of the number and types of race-neutral strategies schools use in place of affirmative action.

However, the most common race-neutral approaches include:

• Giving preference to students with a lower socioeconomic status, typically determined by family income and the occupations and education levels of members of students’ households.
  
  In the U.S., a person’s race and ethnicity is closely linked to their socioeconomic status, with Black, Hispanic and Native American students more likely to have a lower socioeconomic status than white and Asian students. For example, in 2021, 19% of Hispanic children under age 18 lived in households in which at least one parent had not finished high school, compared with 3% of white and Asian children, according to the National Center for Education Statistics.
  
  However, policies aimed at aiding students based on income or socioeconomic status do not just benefit underrepresented racial and ethnic minorities. Nearly half of undergraduate students who are the first in their families to go to college are white and not Hispanic, according to the Center for First-Generation Student Success, part of the National Association of Student Personnel Administrators.

• Expanding recruitment efforts. Higher education officials often target high school students who are the first in their families to go to college and high schools located in lower-income areas.

• Increasing the number and dollar amount of scholarships offered to students from low-income households or low socioeconomic backgrounds.

• Introducing a “holistic” application review process, which takes into account students’ extracurricular activities, accomplishments outside school and lived experiences as well as traditional measures of academic ability such as test scores, academic awards and grade-point averages.
  
  Stanford University, which practices holistic admissions, tells applicants on its website that the approach helps admissions officers “understand how you, as a whole person, would grow, contribute and thrive at Stanford, and how Stanford would, in turn, be changed by you.”

• Dropping the requirement that applicants take and submit their scores on college-entrance exams such as the SAT and ACT. The change benefits underrepresented minorities and lower-income students because they often earn lower scores than white and Asian students and students from higher-income backgrounds.

• Adopting a “top percent” program. Florida, California and Texas have adopted programs that guarantee youth who graduate within a top percentage of their high school class a seat at one of their public universities. Such policies aim to diversify college enrollment by capitalizing on high levels of racial and ethnic segregation among high schools in those states.
  
  “Black and Hispanic students who rank at the top of their class disproportionately hail from minority-dominant schools,” Princeton University scholars Marta Tienda and Sunny Xinchun Niu write in a 2006 paper examining Texas’ Top Ten Percent rule, which guarantees Texas high school students who graduate in the top 10% percent of their class and complete other requirements admission to most public universities in the state.

Benefits, consequences of race-neutral alternatives

Michigan is one of nine states that prohibit affirmative action at public universities. In November 2006, voters there approved a state constitutional amendment known as Proposal 2, which prohibits all public institutions and agencies from discriminating against or giving preferential treatment to anyone based on race, gender, ethnicity and other factors.

The University of Michigan, a top-ranked public university, introduced a wide range of programs to replace affirmative action. Attorneys for the school argue race-neutral strategies have been expensive, time consuming and labor intensive.

After the law took effect in December 2006, the University of Michigan “was forced to radically alter its admissions process in order to even approach the diversity levels achieved prior to Proposal 2,” the attorneys write in a 36-page amicus brief filed with the Supreme Court late last year in support of Harvard and UNC-Chapel Hill.

“That change was so disruptive that the response not only took time — over 15 years and counting — but vast resources and efforts extending far beyond University campuses, as U-M developed extensive new race-neutral initiatives that reached into school districts around the state,” the attorneys write.

Those combined efforts helped the university raise its underrepresented minority enrollment to 13.5% in 2021 — slightly above where it had been the year before the state banned affirmative action. While an influx of Hispanic students helped U-M rebuild its enrollment of underrepresented minorities, the university has not been able to regain its footing with regards to Black and Native American students.

Neither has the California public university system, which has spent more than a half-billion dollars implementing alternate policies over the last 25 years, its attorneys note in another amicus brief filed last year with the Supreme Court.

The University of California system has adopted various race-neutral policies since voters there approved Proposition 209, a state constitutional amendment similar to Michigan’s, in 1996. That ban began with the freshman class of fall 1998.

The state’s most selective public universities — the University of California, Berkeley and University of California, Los Angeles — lost the most ground. Prior to the ban, 6.32% of freshmen at UC Berkeley were Black. In 2019, that figure dropped to 2.76%. The proportion of Native American freshman fell from 1.82% to 0.37%.

Hispanic enrollment, however, has grown across California’s public universities. But the state also has seen its Hispanic population swell in recent decades. This academic year, 56% of all children attending public elementary, middle and high schools there are Hispanic.

“UC has established a number of outreach programs aimed at students from low-income families, students whose families have little or no previous experience with higher education, and students who attend an educationally disadvantaged school,” attorneys for the university system write in their amicus brief, which also was submitted in support of Harvard and UNC-Chapel Hill.

“Because these outreach programs primarily target economically and educationally disadvantaged students, the extent to which they are able to reach underrepresented minority students depends on changing demographic patterns. By 2020, it had become more difficult for these outreach programs to reach African American and Native American students, even as more Latinx, Asian American, and White students benefited from them.”

Uncertainty ahead

It’s difficult to predict how race-neutral alternatives would affect all institutions that currently consider race and ethnicity when choosing students. That’s because much of the research on the topic focuses on public universities in a single state. Often, it is California, the most populous state and home to the two public universities ranked highest in the country in the U.S. News & World Report’s 2022-2023 Best Colleges rankings.

When scholars publish a paper that examines race-neutral strategies at one school or a group of schools in one state, the results  typically apply only to the institutions studied. It is erroneous to assume other colleges and universities will have exactly the same experiences.

Even so, researcher’s findings can provide insights into how enrollments might change if private and public colleges and universities must stop practicing race-based affirmative action.

“They’re helpful in thinking about what would happen in other states even if differences in states’ student bodies or university landscapes might lead to different outcomes in different places,” Bleemer wrote to The Journalist’s Resource.

A narrow segment of affirmative action-related research looks at how well race-neutral alternatives work. It’s hard to evaluate individual policies, however, because college administrators often use several strategies at once, Mark Long, the dean of the School of Public Policy at the University of California, Riverside, wrote to The Journalist’s Resource.

Also, it is not always clear what exactly institutions are doing differently to boost minority enrollment. Some changes “might be subtle and not advertised by the schools — for example, changes in the inputs used to make admissions decisions,” Long added.

Demographic shifts have made it tougher for scholars to estimate the impact of race-neutral alternatives. Scholars have seen Hispanic enrollment climb at some public universities after they stopped using affirmative action. In many cases, they believe those improvements are the result of changes within the Hispanic population, not university interventions.

Nationwide, the number of Hispanic youth attending public elementary, middle and high schools jumped from 7.7 million in fall 2000 to 14.3 million in fall 2022, the U.S. Department of Education reports. The student population, as a whole, grew less than 6% over that period.

More Hispanic students are going to college. In 2021, 59% of Hispanics aged 16 to 24 years were enrolled in college, up from 53% in 2000, data from the Bureau of Labor Statistics show.

Long and Nicole Bateman, a former senior research analyst at the Brookings Institution, investigated changes among students who applied to and enrolled at public universities in states that prohibit affirmative action.

The researchers studied data from 19 public universities across all nine states spanning from the early 1990s to the mid-2010s — before and after bans were put in place. Their conclusion: Race-neutral strategies were an “insufficient” replacement for affirmative action at those 19 schools.

“We find a sizable decrease in [underrepresented minorities’] share of admittees immediately following the affirmative action bans,” Long and Bateman write in their analysis, published in 2020. “Of more concern, the trends in nearly all of these universities are negative in the following years.”

State flagship universities and selective institutions, including the University of Florida, University of Georgia, University of Nebraska-Lincoln and UC Berkeley, were most affected.

The researchers argue that raising underrepresented minority enrollment is too large a job for colleges and universities to do alone, especially considering many of the factors that influence enrollment are outside education officials’ control.

State policymakers need to do more to reduce economic disparities among racial groups and bolster Black, Hispanic and Native American children’s academic achievement, Long and Bateman write.

“To help university administrators, public administrators and policymakers should particularly note the large racial gaps in kindergarten readiness and note that these gaps are maintained as students progress through the education system,” the researchers add. “Thus, without sustained, focused attention on mitigating gaps that emerge in the first years of life, we should expect persistent racial inequality in higher education.”

A roundup of research

Journalists covering college admissions need to familiarize themselves with the research on race-neutral strategies for boosting student diversity. Below are summaries of academic papers that examine three of the most common approaches: test-optional policies, holistic review and “top percent” plans. The featured studies focus primarily on undergraduate student enrollment.

To better understand how student diversity changes at institutions that give preference to applicants based on socioeconomic status, read our piece explaining the 2018 analysis, “What Levels of Racial Diversity Can Be Achieved with Socioeconomic-Based Affirmative Action? Evidence from a Simulation Model.”

Also, check out the reporting tips several prominent researchers offer journalists who are preparing to cover the upcoming Supreme Court decisions.

Test-optional policies

Untested Admissions: Examining Changes in Application Behaviors and Student Demographics Under Test-Optional Policies
Christopher T. Bennett. American Educational Research Journal, February 2022.

The study: The author looks at how undergraduate student diversity changed at private colleges and universities in the U.S. after they started letting students apply without submitting SAT and ACT scores. Bennett examines 99 private institutions that enacted test-optional admissions policies between the academic years 2005-2006 and 2015-2016 and compares them with a group of 118 private institutions that enacted or announced test-optional policies for the 2016-2017 academic year or later.

The findings: At the schools studied, test-optional policies were associated with small increases in underrepresented minorities, lower-income students and women. Bennett estimates the number of underrepresented minorities who enrolled in schools that had implemented test-optional policies rose 10.3% to 11.9%. He adds that although the increase was “fairly substantial in relative terms, such effects correspond to a modest 1 percentage point increase in absolute terms in the share of [underrepresented minority] students among the entering class.”

In the author’s words: “For institutions seeking dramatic shifts in the student populations they serve, test-optional policies would likely need to represent one facet of a more comprehensive plan.”

Holistic review

Affirmative Action and Its Race-Neutral Alternatives
Zachary Bleemer. Journal of Public Economics, April 2023.

The study: Bleemer examines three admissions policies — race-based affirmative action, holistic review and top-percent policies – to find out which did the best job raising underrepresented minority enrollment across California’s public university system. To investigate these policies, Bleemer built a database representing 2.2 million freshmen at nine undergraduate campuses between 1994 and 2021. Six campuses, including UCLA and UC Berkeley, implemented holistic review between 2002 and 2012.

He explains that holistic review “eliminates universities’ use of fixed weights over the wide variety of admission criteria used to judge applicants, providing evaluative flexibility designed to benefit applicants whose academic preparation was hindered by limited pre-college opportunity.”

The findings: Race-based affirmative action had the largest impact, increasing underrepresented minority enrollment by about 850 freshmen per year, or 20%, during the years of the study period it was allowed. Holistic review had the second-largest impact. It boosted Black, Hispanic and Native American enrollment about 7%, on average, across the six campuses using that policy. Bleemer writes that about 45 underrepresented minorities enrolled as a result of holistic review in 2002, but the figure swelled to about 600 in 2017. Meanwhile, top percent policies resulted in an enrollment bump of less than 4%.

In the author’s words: “These findings suggest that the most common policies adopted to replace affirmative action in states where race-conscious university admission preferences have been prohibited have had non-trivial but comparatively small [underrepresented minority] enrollment effects in California, suggesting that preserving racial and socioeconomic diversity using race-neutral admission policies will require policy innovation.”

Top percent plans

Texas Top Ten Percent Plan: How It Works, What Are Its Limits, and Recommendations to Consider
Stella M. Flores and Catherine L. Horn. Report for the Civil Rights Project at UCLA, December 2016.

The study: Flores and Horn compare top percent plans in Florida, California and Texas, pointing out their value, strengths and shortcomings. The report focuses heavily on Texas’ Top Ten Percent Plan, the most frequently studied. The authors also synthesize what is known about percent plans and offer recommendations for education leaders considering adopting race-neutral alternatives.

The findings: Data collected on Texas’ percent plan provide a mixed view of its effectiveness in building underrepresented minority enrollment at Texas public universities. Assessments of the program that take into account the state’s changing demographics indicate Hispanics have been less likely to go to college since the initiative started, Flores and Horn write. The report raises questions about whether Black students gaining automatic admission through Texas’ percent plan are more likely to attend the state’s lower-tier public universities than its most selective ones.

In the authors’ words: “In sum, percent plans vary both in their guarantees and in the ways in which demographic context nuances understanding of their effectiveness.”

Academic Undermatching of High-Achieving Minority Students: Evidence from Race-Neutral and Holistic Admissions Policies
Sandra E. Black, Kalena E. Cortes and Jane Arnold Lincove. American Economic Review, May 2015.

The study: Black, Cortes and Lincove examine the application choices of minority students in Texas who graduated in the top 25% of their high school class. They look specifically at whether two admissions policies — Texas’ Top Ten Percent Plan and holistic review — contribute to academic undermatching, or the tendency for high-achieving minority students to attend lower-tier public universities even though their academic abilities would allow them to go to the state’s two highly selective flagship schools, the University of Texas at Austin and Texas A&M University.

The researchers analyzed data for about 35,000 students who graduated in the top 10% of their high school class in 2008 and 2009 and about 31,000 students who graduated in the top 11% to 25% of their senior class the same two years.

The findings: Only 29% of Black students and 32% of Hispanic students who graduated in the top 10% of their class enrolled at selective flagship universities in Texas despite being guaranteed admission. Meanwhile, 48% of their white counterparts and 51% of their Asian counterparts did. Academic undermatching was even more common among Black and Hispanic students who graduated in the top 11% to 25% of their class and whose applications underwent holistic review. Of the Black and Hispanic students in this group, 5% enrolled at flagship campuses.

In the authors’ words: “Both Black and Hispanic top 10% and top 11-25% students are more likely to enroll at less selective public universities or two-year colleges, and less likely to enroll in private or out-of-state four-year universities than their white student counterparts, which suggests highly-qualified minority students are choosing lower quality Texas universities, rather than leaving the state for higher quality institutions.”

The post Race-neutral alternatives to affirmative action in college admissions: The research appeared first on The Journalist's Resource.

This tip sheet on covering race-based affirmative action, originally published in April 2023, has been updated to reflect the Supreme Court’s June 29 ruling on the practice.

Journalists covering higher education in the U.S. likely will be covering issues around affirmative action long after the U.S. Supreme Court decided June 29 that it’s unlawful for colleges to give underrepresented minorities an edge in the admissions process.

Only the five federal military academies, which include the U.S. Naval Academy and U.S. Military Academy at West Point, are exempt.

For years, many of the country’s most selective colleges and universities relied on affirmative action to help them diversify enrollment and increase the number of Black, Hispanic and Native American students entering career fields such as medicine, technology, politics and law. Now that the practice has been banned, schools wanting to maintain or improve their student diversity will need to find new ways to do that.

Higher education officials generally do not consider Asian students underrepresented minorities because such a large percentage apply to and attend college. In 2020, 64% of Asian 18- to 24-year-olds in the U.S. were enrolled in undergraduate or graduate programs, compared with 41% of white 18- to 24-year-olds, 36% of Black and Hispanic 18- to 24-year-olds, and 22% of American Indians and Alaska Natives of the same age, according to the National Center for Education Statistics.

It’s important for journalists to understand that most of America’s 3,931 degree-granting institutions did not employ race-based affirmative action at the time the Supreme Court released its decision. In fact, about 30% are community colleges, which typically admit all or nearly all applicants.

The most prestigious schools are the most exclusive. Only 2% to 30% of applicants get into the 100 colleges and universities with the lowest undergraduate acceptance rates, the U.S. News & World Report’s newest ranking, based on the fall 2021 entering class, shows.

The acceptance rate at the Curtis Institute of Music in Philadelphia was 2%, according to the ranking. Five private institutions had acceptance rates of 4%: California Institute of Technology, Harvard University, Massachusetts Institute of Technology, Princeton University and Stanford University.

The University of North Carolina at Chapel Hill, the nation’s oldest public university, accepted 19% of its applicants. The U.S. Military Academy at West Point accepted 11%.

To help newsrooms report on race-based affirmative action and other admissions practices, we interviewed researchers who study them. In all, seven experts — two professors of education, four economists and the senior associate editor of the Du Bois Review: Social Science Research on Race — shared a wealth of helpful insights and advice. We distilled the bigger points into these six tips.

1. Broaden news coverage beyond undergraduate students at prestigious private colleges. Public universities likely will be impacted most by the affirmative action ban.

“There’s a tremendous focus on super-selective private universities,” says economist Zachary Bleemer. “The big impact won’t be selective private universities. It will be at selective public universities.”

Ivy League schools and other elite private colleges have relatively small enrollments. For example, Harvard has 7,103 undergraduate students. Williams College, which the U.S. News & World Report ranks as the best national liberal arts college in the country, has approximately 2,000.

Top-tier public universities, on the other hand, typically serve significantly more students. UNC has 19,743 undergrads, its website shows. The University of Texas at Austin, which comes in at No. 10 in the 2022-2023 Best Colleges rankings, has 41,309 undergrads.

Affirmative action was already prohibited at the two public universities tied for the No. 1 spot: University of California, Berkeley and University of California, Los Angeles. In 1996, California voters approved Proposition 209, a state constitutional amendment that, among other things, forbids public colleges and universities there from giving students preferential treatment based on race, ethnicity, sex, color and national origin.

When Bleemer studied California’s affirmative action ban, he found it affected public universities statewide. During the first few years after the ban’s adoption, many of the Black and Hispanic students who likely would have gotten into UCLA and UC Berkeley if affirmative action had been allowed ended up attending less competitive schools. Meanwhile, the university system, as a whole, “annually received about 250 fewer Black and 900 fewer Hispanic applications after Prop 209, almost 80% of whom would likely have been admitted to at least one UC campus,” he writes in a paper published last year in The Quarterly Journal of Economics.

Journalists also need to do a better job explaining that a nationwide ban on affirmative action in college admissions will impact lots of schools — not just the most selective ones.

“When you’re talking about how the Supreme Court decision is going to reshape American higher education, you have to talk about [the potential impact of] limiting Black and Hispanic students’ access to their state flagship public university and other top public universities,” he says.

2. Ask higher education officials how they will make admissions decisions and maintain student diversity.

Researchers urge journalists to press higher education officials to explain their plans for responding to the Supreme Court rulings. College administrators likely have been consulting with attorneys and members of their school’s board of directors to devise plans for maintaining and bolstering student diversity.

V. Thandi Sulé, an associate professor of higher education at Oakland University, recommends asking schools whether they will use standardized test scores in the same way they have been using them to select students.

Black, Hispanic and Native American students tend to receive lower scores than white students on college-entrance exams such as the SAT and ACT. A paper published last year in the American Educational Research Journal finds minority student enrollment improved at private colleges and universities that eliminated test score requirements between 2005 and 2016. After implementing a test-optional policy for undergraduate admissions, the number of underrepresented minorities attending the 99 schools studied rose 10.3% to 11.9%, on average.

“It’s important to know if institutions will continue their reliance on high stakes testing like ACT and SAT,” Sulé wrote in an email.

Be sure to also ask officials at graduate schools, including medical and law schools, about their plans, says David Mickey-Pabello, a postdoctoral fellow at UCLA’s Civil Rights Project and Harvard’s Hutchins Center for African and African American Research. His research reveals underrepresented minority enrollment fell 3.4 percentage points at public university medical schools in six states — Texas, California, Washington, Florida, Michigan and Nebraska — after admissions officers stopped considering student race and ethnicity.

He stresses that no recruitment effort or policy change to date has improved student diversity as much as affirmative action.

“All of the research has basically said there’s no magic formula for replacing race-based admissions,” says Mickey-Pabello, who is also the senior associate editor of the DuBois Review. “There are ways to get close to it, but there will never really be a substitute for it.”

3. Help audiences understand that admissions processes vary widely across higher education institutions.

Admission officers say the four biggest factors they consider when evaluating applications for undergraduate study are high school grade-point average, the rigorousness of the high school curriculum, grades in college preparatory courses and college-entrance exam scores, according to a 2019 report from the National Association for College Admission Counseling. Some of the next most important factors: the student’s essay, class rank, extracurricular activities, demonstrated interest in the institution, and counselor and teacher recommendations.

While schools tend to look at the same information, they don’t all give the same weight to each component of a student’s application. Admission decisions also are influenced by factors unique to each school — for example, whether it is public or private, the size of its enrollment, its acceptance rate and whether it gives preference to certain students, including athletes and underrepresented minorities.

Dominique Baker, an associate professor of education policy and leadership at Southern Methodist University, says the public needs to understand that admission processes, and the amount of weight some schools have given student race and ethnicity, can vary substantially.

She recommends journalists interview people who work directly with students and their applications — not just college presidents and other high-ranking administrators — to explain how individual admissions offices evaluate applicants and operate on a day-to-day basis.

“People have a lot of misconceptions [about admissions processes] and a lot of things people think happen are fundamentally inaccurate,” says Baker, a former assistant dean in the University of Virginia’s Office of Undergraduate Admissions.

At schools that have practiced affirmative action, race and ethnicity often served as a tiebreaker when admissions officers had difficulty choosing from a pool of strong candidates. Receiving even a very small edge could make all the difference when tens of thousands of students were vying for a few thousand seats in a school’s incoming freshman class.

Michael Lovenheim, the Donald C. Opatrny ’74 Chair of Cornell University’s Department of Economics, points out that underrepresented minorities are but one of several student groups that selective institutions have given preferential treatment. Athletes and “legacy” students, the children or grandchildren of alumni, often are given preference, too.  

“Many institutions give a bump for being a legacy or being good at a particular sport or playing an instrument or having an interest in specific fields,” Lovenheim says. “There’s a wide range of preferences that are being exercised during the admissions process. [Affirmative action] is one — but not the only one.”

4. Look to the states that prohibit affirmative action at public colleges and universities to get a sense of how a nationwide ban could impact higher education broadly.

Researchers have conducted dozens of studies examining the short- and long-term effects of affirmative action bans in higher education. Much of the scholarship focuses on California, partly because it was the first state to bar racial preferences at public colleges and universities. Washington followed two years later, in 1998, and then Florida did in 1999. In 2020, Idaho became the most recent state to end the practice in public colleges and universities.

In all, these nine states prohibit their public colleges and universities from giving preference to Black, Hispanic and Native American applicants: Arizona, California, Florida, Idaho, Michigan, Nebraska, New Hampshire, Oklahoma and Washington. Many public universities in Texas, including the Texas A&M University System, also did not give preferences based on race and ethnicity.

“This gives us a lot of information about what happens when states ban affirmative action,” Bleemer says. “We know how this changes admissions policy. We know how it changes diversity and the long-term effects for Black and Latino students.”

For example, a 2012 paper in The Review of Economics and Statistics predicts that a public university with an admission rate of 60% would see its Black student enrollment fall an estimated 1.19 percentage points and its Hispanic enrollment decline by 1.58 percentage points following a ban on race-based admissions. At a public university with an admission rate of 30%, Black and Hispanic enrollment would drop even more — by an estimated 2.15 percentage points and 4.16 percentage points, respectively, notes the author, Peter Hinrichs, who’s currently a senior research economist at the Federal Reserve Bank of Cleveland.

A 2013 study in the American Educational Research Journal looks at affirmative action bans in several states, concluding that fewer underrepresented minorities pursued graduate degrees in science-related fields after public universities stopped considering race and ethnicity. Liliana Garces, now a professor at the University of Texas at Austin’s College of Education, discovered engineering programs in particular grew less diverse.

A 2020 article in Educational Evaluation and Policy Analysis shows underrepresented minority applications and enrollment fell across 19 public universities that stopped considering race in admissions, even as high school enrollment in their states became more diverse. The researchers — Mark Long, the dean of the School of Public Policy at the University of California, Riverside, and Nicole Bateman, a former senior research analyst at the Brookings Institution — analyzed application and enrollment patterns in nine states, although 13 of the 19 universities they examined are in Texas, Florida and California.

The gap between the percentage of underrepresented minorities attending those universities and the percentage of underrepresented minorities going to high school in those states increased immediately after the universities stopped factoring in race and ethnicity. The authors of that paper note that the gap continued to widen through 2015.

“In the year after affirmative action was banned, Black, Hispanic, and Native American students’ share of applicants to the 19 public universities we study was, on average, 14 percentage points below their share of high school graduates in these universities’ states, whereas their gap in enrollment at these same universities was only modestly larger, 17 percentage points,” the authors write.

5. Push colleges and universities for greater transparency in admissions data.

Richard Sander, an economist and law professor at UCLA Law, urges journalists to push higher education institutions for more detailed student data. He has had difficulty getting data for his own research on affirmative action at law schools.

Sander’s paper on the issue, published in 2004 in the Stanford Law Review, raised questions about whether affirmative action hurt some Black law school students more than it helped. He has tried for decades to get more recent data and data from more law schools to test his “mismatch” theory: that weaker students admitted to elite law schools through affirmative action policies often struggle and would have more academic and career success by attending less competitive schools.

He acknowledges his paper has drawn ample criticism, some of it from prominent scholars, and that the evidence he used was circumstantial. He needs better data, he says, to do a more complete analysis.

In 2008, he sued the State Bar of California to get individual students’ law school grade-point averages, bar exam scores, race and other data — an effort The Los Angeles Times wrote an editorial supporting. But the lawsuit, which took 10 years to litigate, was ultimately unsuccessful. In 2018, he sued the University of California system seeking a wide variety of student data.

“Schools in the last 20 years have become dramatically less transparent about what they’re doing in admissions,” Sander says, adding that better access to data also would allow journalists and researchers to check whether colleges and universities comply with the upcoming Supreme Court decisions.

6. Look for changes in how institutions treat legacy applicants and support underrepresented minorities.

The Supreme Court barred affirmative action in response to two lawsuits filed by the group Students for Fair Admissions, which had challenged the legality of race-based admissions practices at Harvard University and the University of North Carolina at Chapel Hill. The cases prompted wider discussions about the types of undergraduate students colleges give preferential treatment for reasons having nothing to do with academic ability.

Peter Arcidiacono, an economics professor at Duke University, had predicted that if justices struck down affirmative action, colleges would have a harder time justifying preferences given to legacy applicants.

His study of documents released as part of the lawsuit against Harvard offers insights into how the institution made admissions decisions. He examined 166,727 applications from U.S. students who would have graduated from 2014 to 2019 and found that 69% of legacy students were white.

Other research suggests legacy students at other prestigious schools also are disproportionately white.

“If the court bans affirmative action, my suspicion is there will be a lot of pressure to get rid of legacy admissions,” Arcidiacono, who served as an expert witness for Students for Fair Admissions, said earlier this year.

Baker, of Southern Methodist University, says journalists should watch for signs schools are cutting back on or shutting down programs designed to give financial, academic and emotional support to underrepresented students. Examples of such initiatives: tuition scholarships targeting Hispanic students and programs encouraging women of color to pursue careers in the so-called STEM fields of science, technology, engineering and mathematics.  

 “Higher education institutions are leery of lawsuits and sometimes they can overcompensate,” Baker says. “The biggest concerns are when institutions try to preemptively protect themselves and end up cutting a whole swath of things because they don’t want to be sued.”

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Google searches for abortion medications reached an all-time high in the hours and days after the May 2 leak of a draft Supreme Court majority opinion in favor of overturning Roe v. Wade, and the searchers were more common in states with restrictive reproductive rights, according to a research letter published on June 29 in JAMA Internal Medicine. 

The surge in searches highlights the importance of providing women with information on where they can legally and safely obtain abortion medications, including telemedicine consultations with health care professionals, researchers note. 

“Elevated interest in abortion medications should alert physicians that many of their patients may pursue this option with or without them,” they write in “Internet Searches for Abortion Medications Following the Leaked Supreme Court of the United States Draft Ruling.” 

Using Google Trends, which analyzes the popularity of individual Google searches and provides relative search volumes with a value between 0 to 100, the researchers retrieved Google searches in the U.S. for abortion pill or abortion medications mifepristone (brand name, Mifeprex) and misoprostol (brand name Cytotec) from Jan. 1, 2004, when Google began collecting data, to May 8, 2022. 

They analyzed weekly national online search trends for the medications for the entire study period, finding that the weekly search volume reached its historic peak during the week of the Supreme Court draft leak, with 350,000 searches. The volume was 1.67 times higher than the prior week and twice as high as 2012, according to the researchers.

They also looked at hourly search volumes for the three days before and after the Supreme Court draft leak. The spike in searches for abortion medications were cumulatively 162% higher than they had projected for the 72 hours after the leak. The spike was immediate in the hour that Politico reported the leak, study co-author John W. Ayers wrote in an e-mail to The Journalist’s Resource.

Researchers also find a correlation between the volume of searches and women’s reproductive rights in states — such as public funding for abortion and access to abortion services providers.

For instance, Nebraska had the highest search volume for abortion medications in the three days following the leak, followed by Iowa and Missouri. The three states have received grades of F, C+ and D respectively, from the Institute for Women’s Policy Research, which assigns each state a letter grade based on the level of reproductive rights. Hawaii, which received an A- from the institute, had the lowest online search volume for the medications. 

The study was accepted for publication on May 31, before the Supreme Court officially overturned Roe v. Wade in a 5-4 decision on June 24, ending five decades of federal abortion rights and sending back to the states the authority to ban or allow abortions. 

The team has not analyzed the online search data after the official Supreme Court ruling on June 24, wrote Ayers, vice chief of innovation at U.C. San Diego Medicine, in the email to JR.

A search on Google Trends shows that the search volume for “abortion pill” on June 24 was more than twice as high as the peak on May 3.

Medication abortion, also known as medical abortion or abortion with pills, involves taking two different drugs, mifepristone and misoprostol, during the first 10 weeks of pregnancy, according to Kaiser Family Foundation, a nonprofit organization that conducts health and health policy research. Since the Food and Drug Administration approved the drugs in 2000, half of abortions at 8 weeks gestation or less have been medication abortions, according to KFF.

Mifepristone, sold under the brand name Mifeprex and also known as the abortion pill or RU-486, blocks progesterone, a hormone essential to the development of a pregnancy, and prevents an existing pregnancy from progressing. Misoprostol, marketed under the brand name Cytotec, is taken 24 to 48 hours after mifepristone and empties the uterus by causing cramping and bleeding, similar to an early miscarriage, according to KFF. 

The researchers note their study is limited in that it can’t confirm whether the searches were linked to an abortion attempt, but the authors provide some potential reasons for the online searches.

“Although mifepristone/mifeprex or misoprostol/cytotec require a prescription and their use is restricted in some states, internet searches may reflect people exploring the safety and effectiveness of these medicines, how to obtain them, or stockpiling in anticipation of curtailed access,” the authors write. “Some searchers may be seeking substitute and/or illicit abortion medications as alternatives.”

Shortly after the Supreme Court ruling on June 24, the demand for the emergency contraceptive medicines known as “Plan B” or “morning after pills,” which prevent pregnancy, surged to such an extent that several retailers and drugstore chains, including Amazon, Rite Aid and CVS, began limiting the number of pills consumers can buy on their website or in their stores, according to CNBC and the Associated Press.

The ruling also led to a surge of social media posts offering women abortion pills, prompting Facebook and Instagram to swiftly begin removing them, according to NPR. 

In 32 states, only physicians are allowed to prescribe abortion pills. In the rest of the states, rest advanced practice clinicians, including advanced practice registered nurses and physician assistants, can also prescribe them, according to Kaiser Family Foundation and the Guttmacher Institute, a sexual and reproductive health research organization.

Since January, at least 20 states have proposed bills to restrict or ban access to abortion pills, according to Pew Stateline. 

Additional resources:

• Medication Abortion. This is a comprehensive explainer by the Guttmacher Institute.
• Lay of the Land: Abortion Policies and Access in the United States. The interactive map by the Guttmacher Institute shows each state’s abortion policies, demographic information and statistics. 
• The Availability and Use of Medication Abortion. Provided by the Kaiser Family Foundation, this report provides an overview of medication abortion, insurance coverage and access by state. 
• Medication Abortion and Telemedicine: Innovations and Barriers During the COVID-19 Emergency. This report by the Kaiser Family Foundation provides an overview of barriers and opportunities in using telemedicine to prescribing abortion pills.
• Medication Abortion Up to 70 Days of Gestation. This practice bulletin by the American College of Obstetricians and Gynecologists provides evidence-based guidance on the provision of medication abortion up to 70 days (or 10 weeks) of gestation.
• Medication Abortion: Q&A with experts.  In May, SciLine, a free service for journalists and scientists based at the American Association for the Advancement of Science, asked experts about the fundamentals of medication abortion to help reporters cover the topic.

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The Supreme Court has grown more conservative than the U.S. public over the past decade and is now more conservative than about 75% of Americans, finds a new paper in the Proceedings of the National Academy of Sciences.

The study also reveals much of the public — Democrats in particular — underestimates how far right it leans.

In 2010, the nation’s highest court reflected the preferences of the average American. Its ideological position on key issues shifted sharply to the right after Justice Amy Coney Barrett joined the bench in late 2020 and “is now near the typical Republican,” researchers write.

Barrett, described in a FiveThirtyEight analysis as “particularly conservative on civil rights issues,” replaced liberal Justice Ruth Bader Ginsburg, who died in September 2020. Barrett’s appointment gave the court a 6-3 conservative supermajority, explain the authors of the paper, Stephen Jessee, an associate professor of political methodology at the University of Texas at Austin; Neil Malhotra , a political science professor at the Stanford Graduate School of Business; and Maya Sen, a professor of public policy at Harvard Kennedy School.

To gauge public opinion, the researchers conducted surveys in 2010, 2020 and 2021, each time asking a nationally representative sample of adults their opinions on key issues before the court at that point in time. Researchers asked about 32 prominent Supreme Court cases in total across the three surveys. They also asked people how they expected the court to rule and analyzed the court’s eventual rulings.

Jessee and Sen say they were surprised they did not detect the rightward shift in the court’s collective ideology before 2021, considering just three years earlier conservative Justice Brett Kavanaugh succeeded retiring Justice Anthony Kennedy, who, according to the Washington Post, “generally was conservative but sided with liberals in some of the court’s most important cases.”

Before Barrett’s confirmation in 2020, Justice John Roberts was the court’s median member, representing the ideological middle ground between the most conservative and liberal justices, the researchers write in “A Decade-Long Longitudinal Survey Shows That the Supreme Court Is Now Much More Conservative Than the Public.”

In late 2020, the median moved from Roberts to Kavanaugh, signaling the court’s more conservative direction, the analysis shows.

Jessee, Malhotra and Sen did not examine public opinion or rulings during the current Supreme Court term for this study. However, Jessee says the court’s recent reversal of its landmark decision guaranteeing the right to an abortion and its June 23 decision overturning a New York law limiting concealed handguns were “what we expected to happen given our estimates.”

“Where we expect most decisions to land is fairly far to the right of the average American and, to me, that’s unlikely to change without a membership change,” Jessee says.

Although the Supreme Court is nonpartisan, Sen says the public needs to understand how justices’ individual ideologies and the ideology of the court as a whole align with the country’s largest two political parties. Journalists can use this study’s findings to help explain that dynamic, she says.

“It’s not something journalists should shy away from, and I think it’s important for people to know where the court is,” says Sen.

“A lot of [news] pieces have been written that are more qualitative in nature and speculating,” she adds. “We actually have the data to show it — to show the synergy. We can show you how the court has moved.”

As the researchers pored over the data, two other things became clear: Many people, especially Democrats, perceive the court to be more liberal than it really is. Also, there’s a link between how closely people believe the court’s ideology matches their own and their support for changes affecting the court — for example, implementing term limits for justices and expanding the size of the court.

“This suggests that if people — and particularly Democrats — knew with accuracy the court’s conservative nature, support for court curbing might increase,” the scholars write.

“We leave it to future research to explore why this might be and whether these patterns endure, especially if the court’s more conservative rulings attract additional attention,” they continue. “It is also possible the court’s positioning will change and swing back toward the middle.”

Jessee says when he and his colleagues examine data collected during the current Supreme Court term, they might find the public’s perception of the court has changed.

“It seems likely to me with all the attention on this gun case and, especially, the abortion case that people might update their perception, which for more people would make it a more accurate perception,” he explains.

Both Jessee and Sen stress that their paper does not take a position on whether Supreme Court decisions should line up with public opinion. But their paper notes the court “must draw its legitimacy as a governing institution from public support.”

In other words, the court’s legitimacy could be called into question if the public did not respect and follow its rulings. The public does play an indirect role in picking Supreme Court justices. Voters choose the U.S. president, who is responsible for nominating judges to serve on the Supreme Court, and U.S. senators, who decide whether to confirm the president’s nominee.

A recent Pew Research Center study finds that the Supreme Court’s favorability ratings have fallen in recent years. In January 2022, 54% of the U.S. adults surveyed said they have a favorable opinion of the court. When the center conducted a similar survey in August 2020, 70% of U.S. adults did.

Many Americans do not seem to think justices are keeping politics out of the courtroom. Although the vast majority of adults Pew surveyed this year say justices should not allow their political views to affect their decisions, 57% rated them as doing a fair or poor job of that.

Research indicates many factors influence how the public sees Supreme Court judges, however.

For example, a recent paper in the American Journal of Political Science finds Democrats tend to be less skeptical of female and minority judges than they are white male judges while Republicans often doubt the impartiality of judges who aren’t white and male. A paper published in Political Communication in 2018 suggests TV news coverage is partly to blame for the court’s loss of public support because news reports have often framed its decisions as political or insincere.

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“More than thirty years before the Supreme Court reminded Oklahoma that the Muscogee (Creek) Nation still has a Reservation, my mom repeatedly took us to it. We would pile into the car and drive the thousand miles from our family home in Arizona to our Nation’s Reservation in what is today also known as the State of Oklahoma. When funds were short, we would take the bus. And when we would complain about the length of the drive (a trauma that is considerably less than what our ancestors endured on the Trail of Tears, but nonetheless difficult for a nine-year-old to endure), Mom would tell Creek stories. Her stories were timeless and seemed to transport us, not just to an understanding of our past, but ultimately to our destination.”

Jonodev Chaudhuri, “Reflection on McGirt v. Oklahoma.” Harvard Law Review Forum, November 2020.

It’s been just over one year since the Supreme Court’s landmark McGirt v. Oklahoma decision maintained Oklahoma does not have jurisdiction to pursue cases against American Indians for crimes allegedly committed on tribal land.

According to Justice Neil Gorsuch, writing for the 5-4 majority, 3.25 million acres of Oklahoma, including much of Tulsa, remain Muscogee (Creek) Nation land. State courts have since recognized Cherokee, Choctaw, Chickasaw and Seminole reservations, covering most of the eastern half of the state.

Muscogee land in Oklahoma was established by treaty with the U.S. government in 1866, four decades before Oklahoma achieved statehood. In that treaty, the federal government promised the land would “be forever set apart as a home for said Creek Nation.” Because Congress never explicitly disestablished the Muscogee reservation in Oklahoma, it still exists, the high court found.

“When McGirt was decided there was shock among all the state actors, and of course relief and celebration for the tribes impacted,” said law professor and Muscogee Nation district court judge Stacy Leeds during a July 8 forum hosted by the Indian Legal Program at Arizona State University’s Sandra Day O’Connor College of Law. “That of course was tempered with shock in the Indian law community that the plain language of the law had finally been applied to get the result for the Five Tribes in Oklahoma.”

The Major Crimes Act of 1885 gave the federal government jurisdiction over certain serious crimes alleged to have been committed by Native Americans on tribal land. In 1997, Oklahoma convicted Jimcy McGirt of sex crimes included in the Major Crimes Act.

He was sentenced to two 500-year prison terms without parole.

McGirt, in turn, argued in post-conviction proceedings that as a member of the Seminole Nation of Oklahoma who committed his crimes on Muscogee land, only the federal government could prosecute him.

The core question became: Did McGirt commit his crimes in Indian country? Here, we explore the court’s reasoning in answering that question, as well as recent legal analysis on what McGirt means for criminal and civil jurisdiction for matters affecting tribal citizens in Oklahoma and, potentially, beyond.

The Supreme Court recognizes the Muscogee reservation

In 1948, Congress defined “Indian country” as including “all land within the limits of any Indian reservation.”

“The U.S. Supreme Court has long held that Congress possesses the authority to abrogate Indian treaties and thus can unilaterally diminish (decrease in size) or disestablish (erase) Indian reservations,” writes Arizona State University law professor Robert Miller in “McGirt v. Oklahoma: The Indian Law Bombshell,” published in March 2021 in The Federal Lawyer, the magazine of the Federal Bar Association.

Oklahoma argued in part that Congress allowed Muscogee land to be parceled up and sold to Native and non-Native buyers. That meant, according to the state, that Congress intended to eliminate the reservation.

“For years, States have sought to suggest that allotments automatically ended reservations, and for years courts have rejected the argument … the relevant statute expressly contemplates private land ownership within reservation boundaries,” Gorsuch countered in the majority opinion.

Furthermore, state courts “generally have no jurisdiction to try Indians for conduct committed in ‘Indian country,’” Gorsuch wrote. But there are exceptions.

McGirt and Public Law 280

McGirt does not address Public Law 280 and the law remains in force — but how it plays out by state and specific tribe can vary. Tribes and states may also make other arrangements. For example, the Umatilla Tribe in Oregon, which is covered by Public Law 280, hears child support cases in tribal rather than state court, according to Goldberg.

Importantly, Public Law 280 doesn’t mean tribes lose jurisdiction. It means that the state also has jurisdiction. “On the criminal side, the question arises whether double jeopardy would preclude a state prosecution following prosecution in tribal court,” Goldberg writes.

Double jeopardy is a situation where a defendant is tried twice for the same crime. The Fifth Amendment prohibits double jeopardy. Oklahoma is specifically precluded by state law from pursuing criminal matters following a conviction or acquittal in “another territory, county or state.”

‘Energies and moneys’: Natural resources and business concerns

While McGirt recognized the Muscogee Nation and led to the recognition of four of the other large tribes in Oklahoma, from a practical standpoint it specifically addressed federal and state criminal jurisdiction over tribal members.

Still, Chief Justice John Roberts, writing in dissent, expressed concern the majority ruling would create “significant uncertainty for the state’s continuing authority over any area that touches Indian affairs, ranging from zoning and taxation to family and environmental law.”

In an amicus brief submitted for McGirt, groups representing Oklahoma oil producers, farmers, ranchers and other business concerns wrote that for the Supreme Court to recognize the Muscogee reservation would upset the “energies and moneys” they had invested “in their livelihoods and communities, in reliance on the commonly shared understanding of the regulatory, tax, and adjudicatory authority under which they live and operate.”

Governor Kevin Stitt has likewise recently voiced uncertainty over what McGirt means for industry and government in Oklahoma. His administration sued the U.S. Department of the Interior on July 19 in federal district court, months after the cabinet department re-took regulatory control from the state over coal mining in Muscogee Nation.

“With that one ruling, what we thought that’s happened over the last 114 years since statehood was that we were able to regulate industry, we were able to tax, we were able to prosecute crimes,” Stitt told Oklahoma City’s Fox 25 on May 17. “And that’s all kind of thrown up into question.”

Despite those concerns, analysis from several Indian law scholars indicate no major cause for alarm. The Supreme Court and state courts recognized that much of eastern Oklahoma remains Indian country, but that did not mean private land owners in the region suddenly lost their deeds. No land in Tulsa was ceded to Muscogee Nation. The question in McGirt was about criminal jurisdiction.

“Supreme Court precedent strongly indicates that future disputes regarding civil jurisdiction will likely result in outcomes similar to the pre-McGirt state of play,” write law professors Dylan Hedden-Nicely and Monte Mills in August 2020 in Natural Resources Law Insights, an online publication of the non-profit Rocky Mountain Mineral Law Foundation.

Indeed, regarding concerns Oklahoma’s attorneys raised during the McGirt arguments about what the court’s majority decision would mean for past convictions, as well as civil and regulatory matters, Gorsuch offered that “Oklahoma and its tribes have proven time and again that they can work successfully together as partners, and Congress remains free to supplement its statutory directions about the lands in question at any time.” Seth Davis, a law professor at the University of California, Berkeley, put it in straightforward terms in “Tribalism and Democracy,” published November 2020 in the William & Mary Law Review:

“The Court rejected the State of Oklahoma’s argument that recognizing the Reservation would have devastating consequences for governance there. It explained that the Creek Nation is a flourishing democracy that provides a variety of public services.”

It is still unknown, however, how the Supreme Court itself will interpret McGirt moving forward.

“While there is always the possibility that courts will interpret the McGirt decision to only apply to the Major Crimes Act and criminal jurisdiction, Justice Gorsuch never explicitly limits the decision in this way,” write law professors Elizabeth Ann Kronk Warner and Heather Tanana in an in-depth analysis — published in September 2020 as a University of Utah College of Law Research Paper — on how McGirt could affect oil and gas leasing, taxation, rights of way and environmental regulation. “Moreover, the definition of ‘Indian Country’ in Indian criminal law has historically been used in numerous other contexts, including civil regulatory areas.”

Tribal and federal legal caseloads in Oklahoma have skyrocketed

Tribal nations in Oklahoma have significantly ramped up their criminal justice spending in the year since McGirt. The Cherokee Nation, for example, has invested some $35 million to expand its legal capacity, according to the Tahlequah Daily Press. The nation is also updating its criminal, traffic and juvenile codes for the first time in decades.

Chrissi Ross Nimmo, deputy attorney general for Cherokee Nation, underscored the need for the investment during the July 8 forum. In 2019, Nimmo said her office filed roughly 60 charges against Native Americans for crimes allegedly committed on Cherokee land. In 2020, the COVID-19 pandemic dropped that number down to 35. But, since March of this year, filed charges have skyrocketed to more than 1,200.

The spike in charges followed a March 11 Oklahoma Court of Criminal Appeals ruling in Hogner v. Oklahoma, which found Congress never disestablished the Chickasaw and Cherokee nations — the same logic the Supreme Court used in McGirt.

Just as McGirt did for the Muscogee Nation, Hogner maintained the federal government and the tribes as the only entities that can pursue criminal cases against tribal citizens on Chickasaw and Cherokee land.

Prior to McGirt, the Cherokee attorney general’s office had one prosecutor for all criminal and juvenile cases covering the nation’s 7,000 square miles in northeastern Oklahoma, Nimmo said. Now, the office has six full-time prosecutors, has doubled its support staff, hired two full-time judges and nine new police officers and is creating a standalone juvenile justice department. Cherokee Nation is also establishing several satellite court locations apart from its main court location in Tahlequah.

Federal authorities have also seen large spikes in caseloads. The FBI field office in Oklahoma City is now handling thousands of cases involving American Indians, up from about 50 per year pre-McGirt. That includes cases involving tribal citizens that occurred on tribal lands, which were heard and closed in state and local courts but re-opened following McGirt because they now fall under federal jurisdiction.

McGirt himself was retried in federal court and found guilty on November 6, 2020 of two counts of aggravated sexual abuse following a jury trial.

“Today’s verdict is a result of a courageous victim who for the sake of justice was willing to once again relive the horrific acts the defendant perpetrated against her over 24 years ago,” U.S. Attorney Brian J. Kuester said in a new release after the verdict.

The see-sawing relationship between federal and tribal governments

Since the U.S. was founded, the federal government has vacillated between periods of government-to-government cooperation with Native American nations and periods marked by blatant disregard that those nations exist, explains Mitchell Hamline School of Law professor Angelique EagleWoman in “Permanent Homelands Through Treaties with the United States: Restoring Faith in the Tribal Nation-U.S. Relationship in Light of the McGirt Decision,” published April 2021 in the Mitchell Hamline Law Review.

The “foundational relationship” between tribal governments and the U.S. government “is the sovereign-to-sovereign relationship,” EagleWoman writes. “In exercising sovereign authority to enter into treaties and other agreements with the United States, the Tribal Nations did not relinquish their status as tribal governments, capable of all the characteristics of nation-states as understood in the international political community.”

A series of Supreme Court rulings beginning in 1823 illustrate how the relationship changed since the Revolutionary War. The Marshall Trilogy, named for Chief Justice John Marshall, “handed down a framework of diminished property and sovereignty rights of tribal governments that remain in place today,” EagleWoman writes.

The first decision, Johnson v. M’Intosh, formally introduced the “doctrine of discovery” into U.S. law. Sixteenth century Spanish Roman Catholic theologian Francisco de Vitoria established the doctrine as a framework for how colonizers should interact with indigenous people in the Americas. Indigenous people could claim their land, and Europeans could decide how they reacted to those claims, whether with treaty or force. Marshall, delivering the majority opinion in Johnson, explained the European nations claiming land from indigenous nations in the Americas agreed to a sort of “first come first served” approach in order to avoid war with one another. After the U.S. prevailed in the Revolutionary War, Britain’s past claims of discovery became America’s, the court reasoned.

For the federal government, “that discovery gave an exclusive right to extinguish the Indian title of occupancy, either by purchase or by conquest,” Marshall wrote.

The next case in the trilogy, Cherokee Nation v. Georgia, was decided in 1831. Georgia state officials claimed Cherokee lands after the federal government was slow to act on a side deal with the state promising them the tribal nation’s territory. Marshall reasoned the Constitution treated foreign nations and Native tribes separately, so the Cherokee nation had no standing to bring federal suit.

“Their relation to the United States resembles that of a ward to his guardian,” Marshall further contended in the majority opinion. In the final case, Worcester v. Georgia, Marshall’s court in 1832 established that federal law prevailed over the states when it came to dealings with Native Americans.

Yet, as EagleWoman points out, since the 1960s tribes have contracted with the federal government for services, indicating a sovereign-to-sovereign relationship. McGirt may signal a further return to the foundational relationship between the federal government and tribal nations.

“Sprinkle in a few predictions here, some contestable commentary there, and the job is done, a reservation is disestablished,” Gorsuch wrote. “None of these moves would be permitted in any other area of statutory interpretation, and there is no reason why they should be permitted here. That would be the rule of the strong, not the rule of law.”

Further reading

McGirt and Rebuilding of Tribal Nations Toolbox. From the Harvard Project on American Indian Economic Development and the Native Nations Center at the University of Oklahoma, the McGirt Toolbox covers major historical legal events in Indian law and court cases leading to McGirt, treaties between the U.S. government and tribal nations in Oklahoma and policy briefs on a range of topics, including:

• Regulation of natural resources
• Implications of McGirt for cultural resources
• Perils and Possibilities of using Public Law 280 in Oklahoma

Permanent Homelands through Treaties with the United States: Restoring Faith in the Tribal Nation-U.S. Relationship in Light of the McGirt Decision
Angelique EagleWoman. Mitchell Hamline Law Review, April 2021.

“The Rule of the Strong, Not the Rule of Law”: Reexamining Implicit Divestiture After McGirt v. Oklahoma
Joseph Palandrani. Fordham Law Review, April 2021.

McGirt v. Oklahoma: The Indian Law Bombshell
Robert Miller. The Federal Lawyer, March 2021.

Slouching Towards Autonomy: Reenvisioning Tribal Jurisdiction, Native American Autonomy, and Violence against Women in Indian Country
Joseph Mantegani. Journal of Criminal Law and Criminology, spring 2021.

Reflection on McGirt v. Oklahoma
Jonodev Chaudhuri. Harvard Law Review Forum, November 2020.

Tribalism and Democracy
Seth Davis. William & Mary Law Review, November 2020.

Textualism’s Gaze
Matthew Fletcher. Michigan Journal of Race and Law, winter 2020.

Indian Country Post McGirt: Implications for Traditional Energy Development and Beyond
Elizabeth Ann Kronk Warner and Heather Tanana. University of Utah College of Law Research Paper, September 2020.

Who is an Indian Child? Institutional Context, Tribal Sovereignty, and Race-Making in Fragmented States
Hana Brown. American Sociological Review, August 2020.

This Land Is Whose Land? The McGirt v. Oklahoma Decision and Considerations for Congress
Congressional Research Service, July 2020.

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An accurate decennial census matters because the nation’s population count directs federal funding for hundreds of programs. Where people are and who people are directly informs decisions on the distribution of federal funding. The tally also determines apportionment in the U.S. House of Representatives.

Simply put, states that gain population relative to other states are likely to gain representatives in the House. The number of House seats assigned to a state also determines its number of presidential electors, members of the Electoral College who ultimately vote for president every four years. That means the number of House seats in each state could affect the outcomes of the 2024 and 2028 presidential elections, if those races are tight. If there is a state-level population undercount, it’s not just federal funding at stake — it’s democratic representation as well.

House reapportionment and the status of people living in the U.S. without legal permission are central to Trump v. New York, which the U.S. Supreme Court will hear on Nov. 30. The case arose after President Donald Trump in July directed, via memorandum, that the Census Bureau subtract immigrants living in the U.S. without legal permission from state population counts used to determine House reapportionment.

Citizens and noncitizens have been included in House reapportionment calculations since the U.S. government conducted the first national census in 1790. In his memorandum, Trump reasoned: “States adopting policies that encourage illegal aliens to enter this country and that hobble Federal efforts to enforce the immigration laws passed by the Congress should not be rewarded with greater representation in the House of Representatives.”

It’s important to note that states cannot redraw their congressional district boundaries — through a process called redistricting — until the apportionment process is finished. Here’s what else you need to know when lawyers make their respective cases before the Supreme Court on Nov. 30 in Trump v. New York.

A brief, recent history of the citizenship question

In December 2017, the Department of Justice requested that the Census Bureau, housed within the Department of Commerce, ask every person living in the U.S. for their citizenship status on the 2020 census. Justice Department counsel argued the citizenship question was needed to aid the department’s enforcement of the Voting Rights Act.

DOJ attorney Arthur Gary, a career official who typically dealt with budget and procurement issues, wrote that “the Department needs a reliable calculation of the citizen voting-age population in localities where voting rights violations are alleged or suspected.” Emails that ProPublica obtained revealed the letter was drafted by John Gore, acting head of the DOJ’s Civil Rights Division at the time and a Trump political appointee. In March 2018, Commerce Department Secretary Wilbur Ross announced the 2020 census would indeed include a question asking respondents whether they were U.S. citizens.

But the citizenship question never made it onto census questionnaires. In June 2019, the U.S. Supreme Court rejected the DOJ’s rationale, spelling the end of the citizenship question. That the citizenship question was needed to enforce the Voting Rights Act “seems to have been contrived,” according to Chief Justice John Roberts, writing for the majority.

“In the Secretary’s telling, Commerce was simply acting on a routine data request from another agency,” Roberts writes. “Yet the materials before us indicate that Commerce went to great lengths to elicit the request from DOJ (or any other willing agency).”

In a mid-July workaround, the Trump administration directed, via executive order, that executive branch departments and agencies provide the Commerce Department with any requested data that would help the Census Bureau determine the number of citizens and non-citizens living in the U.S. Ross, in his March 2018 memo, had directed the Census Bureau to use federal and state administrative records to try to fill in the citizenship blanks.

Executive memoranda and executive orders are effectively laws for the executive branch. They’re largely similar, and there’s no official definition of either. In the weeks and months before Trump’s July executive order, Iowa, Nebraska, South Carolina and South Dakota agreed to provide the Census Bureau with driver’s license and state identification card data, according to reporting from NPR’s Hansi Lo Wang. Other states — including New Hampshire, Pennsylvania and Maine — declined to provide or offer driver’s license data.

In August, the Census Bureau shortened counting by a month, “to accelerate the completion of data collection and apportionment counts by our statutory deadline of December 31, 2020, as required by law and directed by the Secretary of Commerce,” according to Census Bureau Director Steven Dillingham. Some census workers were left concerned that there was not enough time to achieve an accurate headcount. Two census workers in Massachusetts and Indiana this week told the Associated Press that they entered false information under intense pressure from supervisors because of the tight deadline.

What’s happening with the census and the Supreme Court on Nov. 30?

Federal courts in Maryland, New York and California have already ruled it would be unlawful for the U.S. government to exclude immigrants living here without legal permission from population counts used to divvy up House seats. The Trump administration appealed the New York court’s decision, entered Sept. 10. That’s the case that will soon come before the Supreme Court.

“The Presidential Memorandum violates the statutes governing the census and apportionment in two clear respects,” the three U.S. district court judges from New York write in their ruling. First, federal law requires that the Commerce Department secretary deliver a single set of numbers — the total population for each state — to the president, who, in turn, “is required to use the same set of numbers in connection with apportionment,” the judges write.

The New York judges note that Trump directed Ross to offer up not one but two sets of numbers: The census counts, including immigrants living here without legal permission, and another count of individuals living illegally in each state, tabulated based on administrative records from other federal and state agencies.

“By directing the Secretary to provide two sets of numbers, one derived from the decennial census and one not, and announcing that it is the policy of the United States to use the latter in connection with apportionment, the Presidential Memorandum deviates from, and thus violates, the statutory scheme,” the judges write.

The judges further observe that the memorandum “violates the statute governing apportionment because, so long as they reside in the United States, illegal aliens qualify as ‘persons in’ a ‘State’ as Congress used those words.” The Supreme Court will have the final say on whether the president overstepped his legal bounds in issuing the memorandum and, by extension, whether people living in the U.S. without legal permission will be included in the state tallies used for House reapportionment.

“There’s two issues here,” census historian Dan Bouk explained during an Oct. 29 media briefing co-hosted by the Beeck Center for Social Impact and Innovation at Georgetown University, Journalist’s Resource and Reveal. “One is constitutional and one is statutory. The Constitution, through the Fourteenth Amendment, declares that it’s the ‘whole number of persons’ that will be counted. And so that’s the basis on which the Supreme Court will be deciding if it’s a constitutional claim. And the statutory claim is that the current apportionment statute also uses that same language.”

It’s unclear when the Supreme Court might rule, though the case has been fast-tracked — state population totals are due to the president at the end of December.

What’s at stake?

Whether a state’s population is fully represented in the House, which could affect how much sway voters in each state will have in picking the next two presidents. Trump, in his July memorandum, described the stakes for one large state:

“Current estimates suggest that one State is home to more than 2.2 million illegal aliens, constituting more than 6 percent of the State’s entire population. Including these illegal aliens in the population of the State for the purpose of apportionment could result in the allocation of two or three more congressional seats than would otherwise be allocated.”

The New York judges in their September decision surmise that Trump was referring to California.

How does reapportionment work?

House seats are assigned based on a multistep but straightforward series of equations. Since 1790, the U.S. government has altered its reapportionment formula five times. The current formula, called the Method of Equal Proportions, has been used since 1941.

The Permanent Apportionment Act of 1929 fixes the number of House seats at 435. Each state gets at least one representative, meaning the first 50 seats are automatically apportioned. The remaining 385 seats are allocated by the current formula.

The formula produces state priority rankings based in part on population totals. The top-ranked state for the 51^st seat gets that seat. The top-ranked state for the 52^nd seat gets that seat, and so on until all 435 seats are allocated. The bottom line: A state that has gained population since 2010 has better odds of gaining seats in the House than a state with a stagnant or shrunken population.

What are key dates tied to the House reapportionment process?

Oct. 15: The end of Census Bureau field data gathering and the last day for individuals to postmark their census questionnaires or file them online.

Nov. 30: Supreme Court oral arguments on whether people living in the U.S. without legal permission should be included in House reapportionment.

Oct. 15 to Dec. 31: Timeframe for Census Bureau data processing. This is three months shorter than the average amount of time the Census Bureau has had for processing since the 1990 census, according to a report from the National Conference on Citizenship, a congressionally chartered nonprofit focusing on civic engagement.

Dec. 15: Expected date the Census Bureau will release its “demographic analysis,” the first look at the nation’s new population estimates, based on birth and death records, migration numbers and Medicare enrollment data.

Dec. 31: The statutory deadline for the secretary of commerce to deliver to the president the state population counts used for House reapportionment. During the first week the newly elected Congress meets in the New Year, the president “shall transmit to the Congress a statement showing the whole number of persons in each State.” Within 15 calendar days after that, the clerk of the House must send the allocation of House seats to state officials, according to a 2019 report from the Congressional Research Service.

April 1: The statutory deadline for the Census Bureau to deliver detailed census information to state officials in charge of redistricting.

These dates are subject to change, even though many are just weeks away.

“On the timing front, Congress could still weigh in, which may make news,” Denice Ross, a fellow at the Beeck Center, said during the Oct. 29 media briefing. “A majority of both houses [of Congress] supports moving the deadline back to allow for sufficient time for processing the data.”

Even if these dates come and go that doesn’t mean the assignment of House seats is set in stone for the next decade. If the Supreme Court allows Trump to exclude some number of people living in the U.S. illegally from the apportionment calculation, Congress could still pass and the president could still sign legislation specifying that those individuals be included in reapportionment, according to Bouk, who works at the nonprofit research organization Data & Society.

If Congress changed the apportionment process after the decennial census, it wouldn’t be the first time. Congress codified the Method of Equal Proportions in legislation passed in November 1941. That apportionment formula was in force for the 78^th Congress, seated in January 1943 — roughly three years after the 1940 census was enumerated.

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Harvard’s Shorenstein Center on Media, Politics and Public Policy hosts a weekly speaker series throughout the academic year, as well as other special events. The spring 2016 semester featured several prominent journalists and practitioners, who discussed some of today’s most pressing topics.

The following are highlights from the spring semester. You also can subscribe to the iTunes feed to hear these and future audio podcasts.

Media Business

Nicco Mele: “The future of journalism is small, scrappy enterprises that are entrepreneurial, that are innovative, that are trying things.”

Nicco Mele, recently named the new director of the Shorenstein Center, discussed the future and feasibility of various news outlet business models. He described a deepening crisis in the newspaper industry: although some outlets are seeing the largest online audiences they have ever had, revenue is still shrinking. What is clear is that diversity in revenue streams and experimentation will be an essential part of the way forward. Read more and listen to audio.

Election 2016 and Media Coverage

Bob Schieffer:”We’re having a campaign cycle where, many times, attitude seems to count more to the supporters of a particular candidate than facts.”

Bob Schieffer, Walter Shorenstein Media and Democracy Fellow, veteran CBS reporter, and former moderator of”Face the Nation,” discussed the media’s performance in covering the 2016 election and Donald Trump’s campaign. Trump has an “innate ability” to refocus the media’s narrative and change the subject, said Schieffer, although after such extensive exposure, the media is now starting to ask more follow-up questions, revealing the candidate’s weaknesses. He also discussed the problems that both parties face looking ahead to the conventions and the general election.  Read more and listen to audio.

Shira Center: “It’s notable for how much Trump bashes us, how willing he is to get on the phone and call any kind of show.”

Shira Center, political editor for The Boston Globe, discussed Trump’s relationship with the media and the challenges of covering a frontrunner whose supporters often distrust mainstream news outlets. She also analyzed how the media misjudged Trump’s initial surge in popularity, and the opportunities for more “deep dive” coverage of the candidate. Read more and listen to audio.

Policy

Jo Becker: On Hillary Clinton and Libya: “It can tell you a little bit about how she would act as president.”

Jo Becker, investigative reporter for The New York Times, analyzed Hillary Clinton’s role in the U.S. intervention in Libya, which she argued, ultimately contributed to destabilization in the region. Becker says that Clinton’s foreign policy approach is guided by the belief that “America not only can be a force for good in parts of the world like this, but needs to be.” Read more and listen to audio.

Sarah Kliff: “It’s very easy to live in two different worlds where Obamacare is a completely different law.”

Sarah Kliff, deputy managing editor for visuals at Vox, explained how polarized media coverage of the Affordable Care Act contributes to the divide in public opinion about whether the law has been beneficial or harmful. She also discussed what’s next for health care policy, the 2016 candidates’ positions, and Vox’s approach to covering policy. Read more and listen to audio.

Supreme Court

Linda Greenhouse: “I’m deeply concerned about the consequences of the politicization of the court.”

Linda Greenhouse, longtime New York Times Supreme Court reporter, argued that the Roberts Court has allowed itself to “become a tool of partisan warfare.” Meanwhile, the Republican refusal to even meet with Merrick Garland is “truly unprecedented.” She also reflected upon the legacy of the late Justice Scalia. Read more and listen to audio.

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Linda Greenhouse, who reported on the Supreme Court for three decades for The New York Times, shared her thoughts about the polarization of the nation’s highest court as well as President Obama’s nomination of Merrick Garland and and the legacy of the late Justice Antonin Scalia.

Today’s politically divided Supreme Court is anomalous in U.S. history, said Greenhouse, who covered the Supreme Court from 1978 to 2008 and now writes a biweekly column on law for the Times. She used the Burger Court, which she covered in the 1970s and 80s, as a point of comparison. With its cohort of moderate justices, anybody framing a case before the court “had to assume that they were making an argument that had to get at least some of those people,” she said.

The Roberts Court is also unusual in that its liberal justices were appointed by Democratic presidents, while its conservative justices were appointed by Republican presidents. “Dwight Eisenhower appointed Earl Warren and William Brennan, the two most liberal justices of the second half of the 20th century,” said Greenhouse. “JFK appointed Byron White, who although he was quite liberal on federal power and civil rights, was very conservative on social issues — he dissented in Roe V. Wade, he dissented in Miranda.”

As a result, the public was “able to look at the court not as a reflection of our political polarization … It gave a message that the court was about law and not politics,” said Greenhouse. “I’m deeply concerned about the consequences of the politicization of the court.”

Greenhouse argued that the Roberts Court has allowed itself to “become a tool of partisan warfare.” In taking up United States v. Texas earlier this year, a case about whether the president has authority to defer deportation of parents with children who cannot be deported, the court added a “gratuitous question” about whether the president had violated the Take Care Clause of the Constitution, said Greenhouse. The court has turned a statutory case about the reach of immigration laws into a “major constitutional confrontation,” she said. “That said to me that the court is veering out of control in our political environment.”

Greenhouse addressed several questions about the composition of the court, including whether the legal background of the judges themselves could be problematic. “The last former politician on the court was Justice Sandra Day O’Connor — she was quite conservative for most of her tenure on the court, but she was someone who believed in compromise … that seems to be lacking on the current court,” she said. “The Warren Court — certainly highly effective in accomplishing its agenda — at its height had no members who had formerly been [federal] judges of any kind.”

Regarding Scalia’s legacy, Greenhouse said that although he was a “colorful figure,” she thought he “degraded the discourse of the court” through his “snarky” dissenting opinions and a counterproductive “originalist understanding of constitutional interpretation.”

In the post-Scalia era, a new normal is emerging, said Greenhouse. “We have six justices, including the chief justice, looking in one direction, and we have Justice Alito and Justice Thomas off by themselves on the right wing fringe.” In March, the court reviewed a Massachusetts court ruling that stun guns were not protected under the Second Amendment. Although the case was sent back to the Massachusetts court as an unsigned ruling in favor of gun advocates, Justices Alito and Thomas still wrote a ten-page “screed,” she said.

Regarding President Obama’s selection of Merrick Garland, Greenhouse said he was a brilliant choice — being a judge that Republicans had previously praised — and that Republican refusal to even meet with him is simply “playing to the base.” Their behavior is “truly unprecedented,” she said. On the day of Scalia’s death, “the sun had not set before Mitch McConnell said ‘no matter who the president sends up, we’re not going to confirm that person.’ That has never happened before.”

She furthermore described the use of Joe Biden’s 1992 remarks as “cynical,” as there was no Supreme Court vacancy to fill at that time. The rejection of Robert Bork, who had been nominated by President Ronald Reagan, also was an inaccurate comparison, as “Bork got a week-long hearing and a vote on the floor … they didn’t shut the door in his face.”

During the question-and-answer session, Greenhouse also discussed the process of deciding cases, the purpose and effect of oral arguments, gender balance and diversity in the court, the court’s decision in the 2000 presidential election, and Citizens United, among other topics.

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The decisions of the U.S. Supreme Court are seldom without controversy, and American history has seen fierce public debate over the Court’s proper role in the democracy. With lifetime tenure, justices are in principle immune from the vagaries of public opinion. But new issues inevitably come to the Court because of emerging trends in society, and evolving norms and values have always been part of these cases.

As the Court continues to weigh momentous cases on important social issues, the history of past decisions, such as Roe v. Wade, continue to be contemplated by legal scholars. Did the Court move too “fast”? How should decisions on evolving social issues be adjudicated in light of prevailing views in society?

In 2012, the landmark ruling on the Affordable Care Act was handed down. Many legal scholars noted that the Court’s standing with the public and perceived legitimacy was part of the calculus, as 2012 polling data suggested that the Court’s traditionally high approval ratings had declined considerably. In advance of the ruling, the American people were divided over how the Court should handle the issue.

Scholars are now trying to make sense of the Court’s 2013 decisions — on gay marriage, the Voting Rights Act, affirmative action, and much more — and to see how public opinion might have affected the legal rulings. Writing at the political science blog “The Monkey Cage,” Erik Voten of Georgetown examines the various academic hypotheses and some of the relevant research literature; he concludes that applying an “attitudinal model” helps explain certain judicial decisions.

For background research perspective on the gay marriage case, see this reading list, compiled by George Washington University political scientist John Sides. Emory University political scientist Tom Clark also notes in a useful recent blog post that “the justices are indeed sensitive to the dynamics of public opinion on important issues in society. The Court’s responsiveness to public opinion is something that political scientists have long studied.”

The following reports and studies can help frame these issues:

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“Public (Mis)Perceptions of Supreme Court Ideology: A Method for Directly Comparing Citizens and Justices”
Jessee, Stephen; Malhotra, Neil. Public Opinion Quarterly, 2013, Vol. 77, No. 2, 619-634. doi: 10.1093/poq/nft017.

Abstract: “Do people accurately perceive the Supreme Court’s ideology in relation to their own positions? Which types of people are most likely to misperceive? Answering these questions is important for understanding the basis of public support for the Supreme Court. To do so requires placing the public and the Supreme Court on a common ideological scale. This study represents the first attempt to do so. We ask respondents how they would have voted on a set of cases recently decided by the Court, meaning that we can generate a comparable set of ideal points for both masses and elites in a common space. We find that the Court is generally representative of mass opinion and that most citizens have accurate perceptions of the Court. However, we also find that people are substantially more likely to misperceive the Court as being too liberal than too conservative.”

“The Swing Justice”
Enns, Peter K.; Wohlfarth, Patrick C. Journal of Politics, August 2013, 1-19. doi: 10.1017/S0022381613001035.

Abstract: “In the Supreme Court’s most closely divided cases, one pivotal justice can determine the outcome. Given this fact, judicial scholars have paid substantial attention to the swing justice. This article makes two theoretical contributions to the study of the swing justice and this justice’s resulting influence on case outcomes. First, we show that in a substantial number of cases, the justice that casts the pivotal vote is not the median justice on the Court. Second, we argue that the swing justice will typically rely less on attitudinal considerations and more on strategic and legal considerations than the other justices on the Court. The analysis suggests that even among the Court’s most closely divided decisions, which are typically thought to reflect the Court’s most ideologically driven outcomes, the pivotal swing vote is significantly less likely to reflect attitudinal predispositions and more likely to reflect strategic considerations, such as the public’s preferences, and case-specific considerations such as the position advocated by the Solicitor General. The theory and findings suggest that a failure to consider the unique behavior of a pivotal actor—whether on the Supreme Court or any other decision-making body—can lead to incorrect conclusions about the determinants of policy outputs.”

“On the Ideological Foundations of Supreme Court Legitimacy in the American Public”
Bartels, Brandon L.; Johnston, Christopher D. American Journal of Political Science, January 2013, Vol. 57, Issue 1, 184–199.

Abstract: “Conventional wisdom says that individuals’ ideological preferences do not influence Supreme Court legitimacy orientations. Most work is based on the assumption that the contemporary Court is objectively conservative in its policymaking, meaning that ideological disagreement should come from liberals and agreement from conservatives. Our nuanced look at the Court’s policymaking suggests rational bases for perceiving the Court’s contemporary policymaking as conservative, moderate, and even liberal. We argue that subjective ideological disagreement—incongruence between one’s ideological preferences and one’s perception of the Court’s ideological tenor—must be accounted for when explaining legitimacy. Analysis of a national survey shows that subjective ideological disagreement exhibits a potent, deleterious impact on legitimacy. Ideology exhibits sensible connections to legitimacy depending on how people perceive the Court’s ideological tenor. Results from a survey experiment support our posited mechanism. Our work has implications for the public’s view of the Court as a ‘political’ institution.”

“Supreme Court’s Favorable Rating Still at Historic Low”
Dimock, Michael; Doherty, Carroll; Kiley, Jocelyn. Pew Research Center, March 2013.

Findings: “A national survey by the Pew Research Center, conducted March 13-17 among 1,501 adults, finds that 52% view the court favorably, while 31% view it unfavorably. Those ratings have changed only modestly since last July, shortly after the court’s ruling to uphold most of the Affordable Care Act. Republicans’ views of the court, which tumbled 18 points following the court’s ruling on the health care law, have rebounded somewhat in the current survey. Nearly half of Republicans (47%) have a favorable opinion of the Supreme Court, up from 38% last July, but still lower than the 56% who viewed the court positively prior to its decision on the health care law. By contrast, Democrats’ impressions of the court have slipped since last July, from 64% to 56%.”

“The Supreme Court’s New Source of Legitimacy”
Bassok, Or. University of Pennsylvania Journal of Constitutional Law, Vol. 16, 2013.

Abstract: “In recent decades, the Supreme Court has lost its ability to base its legitimacy solely on its legal expertise yet it has gained public support as a new source to legitimize its authority. Due to growing public understanding that legal expertise does not award the Court with determinate answers, the Court has partly lost expertise as a source of legitimacy. The idea that judges decide salient cases based on their political preferences has become part of common sense and has eroded the Court’s image as an expert in the public mind. On the other hand, as a result of the invention of scientific public opinion polls and their current centrality in the public mind, the Court has now available a new source of legitimacy. Thanks to public opinion polls that measure public support for the Court, the Court for the first time in its history, has now an independent and public metric demonstrating its public support. The monopoly elected institutions had on claiming to hold public mandate has been broken. As a result of these changes as well as the lessons the Court took from the Lochner decisional line and Brown, an important shift in the political balance of power and subsequently in the Rehnquist Court’s understanding of its own sources of legitimacy occurred.”

“How Public Opinion Constrains the U.S. Supreme Court”
Casillas, Christopher J.; Enns, Peter K.; Wohlfarth, Patrick C. American Journal of Political Science, October 2010. doi: 10.1111/j.1540-5907.2010.00485.x.

Abstract: “Although scholars increasingly acknowledge a contemporaneous relationship between public opinion and Supreme Court decisions, debate continues as to why this relationship exists. Does public opinion directly influence decisions or do justices simply respond to the same social forces that simultaneously shape the public mood? To answer this question, we first develop a strategy to control for the justices’ attitudinal change that stems from the social forces that influence public opinion. We then propose a theoretical argument that predicts strategic justices should be mindful of public opinion even in cases when the public is unlikely to be aware of the Court’s activities. The results suggest that the influence of public opinion on Supreme Court decisions is real, substantively important, and most pronounced in nonsalient cases. ”

“Perceptions of Politicization and Public Preferences Toward the Supreme Court”
Bartels, Brandon L.; Johnston, Christopher D. Public Opinion Quarterly, September 2011. doi: 10.1093/poq/nfr032.

Abstract: “To what extent should Supreme Court justices be appointed on the basis of ideology and politics as opposed to qualifications and experience only? We examine how Americans’ preferences regarding this question are influenced by their perceptions of the Court as politicized in how it goes about its work. From a ‘backlash’ perspective, such perceptions should diminish preferences for a political appointment process, while a ‘political reinforcement’ perspective suggests an enhancement effect. National survey data show that large segments of the public perceive of the Court in political terms and prefer that justices be chosen on political and ideological bases. Empirical evidence refutes the backlash hypothesis and supports the political reinforcement hypothesis; the more individuals perceive the Court in politicized terms, the greater their preferences for a political appointment process. Those who view the Court as highly politicized do not differentiate the Court from the explicitly political branches and therefore prefer that justices be chosen on political and ideological grounds. The results have implications for the public’s perceptions and expectations of the Court as a ‘political’ institution.”

‘‘’An Appeal to the People’: Public Opinion and Congressional Support for the Supreme Court”Ura, Joseph Daniel; Wohlfarth, Patrick C. The Journal of Politics, 2010. doi: 10.1017/S0022381610000459.

Abstract: “Scholars often assert that public support for judicial authority induces Congress to grant resources and discretion to the Supreme Court. However, the theory of competing public agency embraced by the Constitution suggests that public support for courts cannot, by itself, explain congressional support for judicial authority. Instead, the logic of the separation of powers system indicates that legislative support for the institutional capacity of courts will be a function of public confidence in the legislature as well as evaluations of the judiciary. We test this theory, finding that public confidence in both Congress and the Court significantly affect congressional support for the Supreme Court, controlling for the ideological distance between the Court and Congress as well as the Court’s workload. The results offer a more refined and complex view of the role of public sentiment in balancing institutional power in American politics.”

“The Separation of Powers, Court Curbing, and Judicial Legitimacy”
Clark, Tom S. American Journal of Political Science, October 2009, Vol. 53, Issue 3. doi: 10.1111/j.1540-5907.2009.00411.x.

Abstract: “A major focus of judicial politics research has been the extent to which ideological divergence between the Court and Congress can explain variation in Supreme Court decision making. However, conflicting theoretical and empirical findings have given rise to a significant discrepancy in the scholarship. Building on evidence from interviews with Supreme Court justices and former law clerks, I develop a formal model of judicial-congressional relations that incorporates judicial preferences for institutional legitimacy and the role of public opinion in congressional hostility towards the Supreme Court. An original dataset identifying all Court-curbing legislation proposed between 1877 and 2006 is then used to assess the influence of congressional hostility on the Court’s use of judicial review. The evidence indicates that public discontent with the Court, as mediated through congressional hostility, creates an incentive for the Court to exercise self-restraint. When Congress is hostile, the Court uses judicial review to invalidate Acts of Congress less frequently than when Congress is not hostile towards the Court.”

“The Supreme Court in American Democracy: Unraveling the Linkages between Public Opinion and Judicial Decision Making”Blackstone, Bethany; Vining Jr., Richard L. Journal of Politics, April 2008, Vol. 70, No. 2.

Abstract: “There is wide scholarly agreement that the frequent replacement of justices has kept the Supreme Court generally attuned to public opinion. Recent research indicates that, in addition to this indirect effect, Supreme Court justices respond directly to changes in public opinion. We explore the two causal pathways suggested to link public opinion directly to the behavior of justices and the implications of the nature and strength of these linkages for current debates concerning Supreme Court tenure. The recent increase in the stability of Court membership has raised questions about the continued efficacy of the replacement mechanism and renewed debates over mechanisms to limit judicial tenure. Our analysis provides little evidence that justices respond strategically to public opinion but provides partial support for the idea that justices’ preferences shift in response to the same social forces that shape the opinions of the general public. Our analysis offers preliminary evidence that — even in the absence of membership change — public opinion may provide a mechanism by which the preferences of the Court can be aligned with those of the public.”

“The Supreme Court’s Many Median Justices”
Lauderdale, Benjamin E.; Clark, Tom S. American Political Science Review, November 2012, Vol. 106, Issue 4. doi: 10.1017/S0003055412000469.

Abstract: “One-dimensional spatial models have come to inform much theorizing and research on the U.S. Supreme Court. However, we argue that judicial preferences vary considerably across areas of the law, and that limitations in our ability to measure those preferences have constrained the set of questions scholars pursue. We introduce a new approach, which makes use of information about substantive similarity among cases, to estimate judicial preferences that vary across substantive legal issues and over time. We show that a model allowing preferences to vary over substantive issues as well as over time is a significantly better predictor of judicial behavior than one that only allows preferences to vary over time. We find that judicial preferences are not reducible to simple left-right ideology and, as a consequence, there is substantial variation in the identity of the median justice across areas of the law during all periods of the modern court. These results suggest a need to reconsider empirical and theoretical research that hinges on the existence of a single pivotal median justice.”

“Public Opinion and Senate Confirmation of Supreme Court Nominees”
Kastellec, Jonathan P.; Lax, Jeffrey R.; Phillips, Justin. Journal of Politics, July 2010, Vol. 72, No. 3, 767-784. doi: 10.1017/S0022381610000150.

Abstract: “Does public opinion influence Supreme Court confirmation politics? We present the first direct evidence that state-level public opinion on whether a particular Supreme Court nominee should be confirmed affects the roll-call votes of senators. Using national polls and applying recent advances in opinion estimation, we produce state-of-the-art estimates of public support for the confirmation of 10 recent Supreme Court nominees in all 50 states. We find that greater home-state public support does significantly and strikingly increase the probability that a senator will vote to approve a nominee, even controlling for other predictors of roll-call voting. These results establish a systematic and powerful link between constituency opinion and voting on Supreme Court nominees. We connect this finding to larger debates on the role of majoritarianism and representation.”

“Reassessing the Impact of Supreme Court Decisions on Public Opinion: Gay Civil Rights Cases”
Stoutenborough, James W.; Haider-Markel,  Donald P.; Allen, Mahalley D. Political Research Quarterly, September 2006, Vol. 59, No. 3.

Abstract: “The theoretical and empirical debate over the ability of the U.S. Supreme Court to influence public opinion through its decisions is far from settled. Scholars have examined the question using a variety of theoretical perspectives and empirical evidence, but there is no theoretical consensus, nor are the empirical studies without methodological weaknesses. We enter this debate in an attempt to bring some clarity to the theoretical approaches, overcome some of the methodological shortcomings, and bring a yet unstudied issue area, Court decisions on gay civil rights, under scrutiny. We argue that the ability of Court decisions to influence public opinion is a function of the salience of the issue, the political context, and case specific factors at the aggregate level. At the individual level these factors are also relevant, but citizen characteristics must also be taken into consideration. Our analysis of aggregate level and individual level opinion does indeed suggest that Court decisions can influence public opinion. However, the ability of Court decisions to influence public opinion is conditional. Our findings lend support to the legitimation hypothesis and the structural effects model. We conclude with a discussion of the implications of our findings and suggestions for future research.”

“Republican Schoolmaster: The U.S. Supreme Court, Public Opinion and Abortion”
Franklin, Charles H.; Kosaki, Liane C. American Political Science Review, September 1989, Vol. 83, No. 3.

Abstract: “The United States Supreme Court has a historical role as a ‘republican schoolmaster,’ inculcating virtues in the citizenry. The role as teacher to the republic also serves the interests of the Court. As the ‘weakest branch,’ the Supreme Court needs public support if its decisions are to be effective. We investigate the Court’s ability to win popular support for its rulings, specifically in the case of Roe v. Wade. The analysis shows that the Court’s decision did affect public attitudes but not as previous work would predict. While support for abortions to protect health increased as a result of the Court’s decision, the public became more polarized over ‘discretionary’ abortions. The puzzle is what process can account for these disparate reactions. We develop a theory resting on interpersonal influences to explain these results, arguing that the social interpretation of events drives the differing outcomes. This theory is then tested against a purely psychological alternative. The closing discussion considers how these results can be extended to the general problem of public decisions and popular responses, including presidential actions and the influence of the media.”

Keywords: law, health care reform, research roundup, partisan divide

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In recent years, the U.S. Supreme Court has issued rulings of high consequence — such as its 2010 Citizens United decision and the 2012 ruling on the  Affordable Care Act — that remain matters of partisan debate. While the conventional view of judges is that they should operate above public opinion and ideology, some research suggests that the Court’s rulings may be shaped by political considerations. Of course, the Supreme Court nominating process itself has also become a more political process in recent decades. How the public will continue to regard a judiciary with more perceived politicization, though, remains an outstanding question.

A 2011 study by researchers at George Washington University and Duke University published in Public Opinion Quarterly, “Political Justice? Perceptions of Politicization and Public Preferences Toward the Supreme Court Appointment Process,” analyzes more than 1,500 citizen responses to the Annenberg Public Policy Center’s 2005 Supreme Court Survey to gauge public attitudes toward the Supreme Court and the appointment process.

Key study findings include:

• 70% of survey respondents consider the Supreme Court to be a political body “too mixed up in politics,” favoring some groups over others.
• “The more individuals perceive the Court in politicized terms the greater their degree of support for an appointment process that emphasizes political and ideological factors.” Some 55% of respondents preferred a politicized appointment process for Supreme Court justices, with 54.4% in favor of requiring a nominee to state their views on legal issues.
• 71% are supportive of a nominee who shares their personal positions on abortion.
• 45.8% believe that the President should consider a nominee’s views on controversial issues; only 49.9% believe that the President should only consider the nominee’s qualifications and background.
• 47.3% believe that the Senate should consider how a nominee may vote on controversial issues, while 48.3% believe that the Senate should only consider qualifications and background.

The authors conclude that “the more citizens see the [Supreme] Court in political terms, the more they prefer that the processes by which justices are appointed be political and ideological in nature… [and] if large segments of the public prefer a political appointment process, then their representatives in government will be less bound to norms of objectivity in the appointment process.”

Tags: Congress, campaign issue

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