Professor Tang presents at Yale/Stanford/Harvard Junior Faculty Forum

Professor Aaron Tang presented his paper “Rethinking Political Power in Judicial Review” on June 13 at the Yale/Stanford/Harvard Junior Faculty Forum, the premier event of its kind in the United States.

“It was a great honor to attend the forum,” Tang said. “Not only did I receive valuable feedback from other participants, but it was enriching to have the chance to learn about the exciting research being done by several prominent up-and-coming junior scholars from around the country.”

His commenter at the forum was noted Boston College constitutional scholar Kent Greenfield, “who I have long admired,” Tang said.

“Kent’s feedback pushed me to think about several arguments and counter-arguments that I hadn’t yet considered,” Tang said. Professor Greenfield’s comments will “both improve the current project, and lead to additional research projects down the line,” Tang said.

“Rethinking Political Power in Judicial Review,” due for publication in the California Law Review, looks at the Supreme Court’s history of more aggressive judicial review of cases involving democratically enacted laws that burdened politically powerless groups.

“That has been a very persuasive way of thinking about constitutional law, but it basically stopped in the 1970s,” Tang said.

Since then, “the Supreme Court has refused to give special protection to the poor, refused to give special protection to folks with mental disabilities,” Tang said. “Gays and lesbians within the marriage context did not win because they were gay or lesbian, but because marriage was especially important.” Or as Justice Anthony Kennedy wrote in his 2015 opinion in Obergefell v. Hodges, no one seeking to wed should be “excluded from one of civilization’s oldest institutions.”

This history is the backdrop, Tang said, for his article’s suggestion that “even if one agrees with the courts no longer applying special protection for the powerless, that doesn’t mean that political power, as such, is irrelevant for judicial decision making.”

Tang’s article argues that “when a government entity passes a law burdening a powerful group, courts should be much more likely to leave that law in place, to defer to the democratic process, to defer to the legislature,” he said. Examples might involve campaign-contribution limits that affect the wealthy, or gun-ownership restrictions opposed by the NRA.

“It is basically flipping this other argument about powerlessness which has dominated federal law for 50, 60 years,” Tang said. “The argument I am making is, fine, we are not doing that anymore, or the conservative court is not doing it anymore, but the court should stay its hand before it tries to protect powerful groups from the legislature.”

Tang joined the UC Davis faculty in 2016. His teaching and research interests include constitutional law, education law, federal courts, labor law, and the intersections among civil litigation, the political process, and public policy more broadly.  A graduate of Stanford Law School, he has clerked for Judge J. Harvie Wilkinson III of the U.S. Court of Appeals for the Fourth Circuit and Justice Sonia Sotomayor of the U.S. Supreme Court. His scholarly articles have appeared in law journals such as the Stanford Law Review, New York University Law Review, Virginia Law Review, George Washington Law Review, and Harvard Journal of Law & Public Policy.