Seaman Family University Professor Karen M. Tani L’07, PhD’11 has written the Foreword to this year’s Harvard Law Review Supreme Court issue, a prestigious opportunity offered to only one legal scholar every year.
In “Curation, Narration, Erasure: Power and Possibility at the U.S. Supreme Court,” which leads off the first issue of Volume 138 of the Harvard Law Review, Tani approaches the work of the 2023 Term—including major controversies over presidential power, firearms regulation, reproductive rights, and the administrative state—as the central “text.” Her Foreword overviews the work of the Term while providing introductory commentary through the particular lens of a legal historian.
“I started thinking about archives and what kind of insights we gain from thinking seriously about historians’ source bases, their limitations, and the craft that goes into making history,” said Tani. “I saw an analogy between the way the Court is picking the cases on its docket and what happens as historians search out traces of the past and then use those traces to tell stories. It was sort of using the historian’s toolkit to think differently about Supreme Court discretion.”
Using terms borrowed from history and the humanities, Tani describes three Supreme Court’s uses of power—curation, narration, and erasure. These also serve as the Foreword’s structure. Analyzed together, Tani writes, they “can help us better understand the current Court, as well as its past and future iterations.”
In Part I, Curation, Tani explores how the Court used its discretion to shape the content of the 2023 term, with an overview of the Court’s certiorari process. The concept of curation offers a way of thinking about what issues the Justices brought into view, as well as what they left out.
Tani shows how recent events, along with the Court’s own recent decisions, inherently affected the items on the docket for the 2023 Term. She highlights cases “focused heavily on the work of the federal administrative state,” and those stemming from the docketing choices and decisions in New York State Rifle & Pistol Ass’n v. Bruen and Dobbs v. Jackson Women’s Health Organization, as well as the 2020 presidential election and “ensuing efforts to thwart the peaceful transfer of power.”
Looking across the Court’s docketing choices, Tani also discerns patterns.
“The Court’s discretion has flowed along particular channels — toward issues that have preoccupied the conservative legal movement and the people that constitute it,” she wrote. “These issues then consume not only the Court’s time but also the time of those who take their cues from the Court, including lower court judges, lawyers, law students, academics, and journalists.”
Tani then explores the themes and issues the Court declined to take up, citing four rejected petitions for certiorari that, in her telling, represent experiences of “domination” — “crushing debit, forced subserviency, unaffordable housing, and vulnerability to economic predation.” Based on the Court’s own criteria, these cases could have made it onto the docket. Why didn’t they?
“Historians love the idea of how different people can look at the same set of sources or the same event and can end up telling really different stories,” Tani said. “They’re interested in unpacking the choices that people make. I was really drawn to that mode of thinking: ‘well you could have done it differently and what should we think about that.’”
While Tani acknowledges that the exercise of exploring what was not included on the docket is not exactly new, she points to the importance of considering why and how the Court chooses to spend its energies—and what might have been gained or learned had the Court chosen differently in the 2023 Term.
In Part II, Narration, Tani builds on the work of legal scholar Robert Cover and others, documenting the Court’s use of its opinions to tell stories, both about the litigants and about itself. She writes that in the 2023 Term’s highest profile cases, “the Court’s conservative supermajority told a story about fealty to the Founders’ vision, humility as to the judicial role, and the Court’s responsibility to take a long view, untainted by the controversies and political alignments of the moment.”
This Part of the Foreword pulls out various narratives from the 2023 Term, including administrative law tales of bureaucratic bungling and overreach (as in Ohio v. EPA, SEC v. Jarkesy, and Loper Bright Enters v. Raimondo); also civil rights enforcement stories, where private plaintiffs come off as meddling and self-important.
Elsewhere in Part II, Tani cites an essay by historian Joy Neumeyer that invoked a “Russian saying of denial,” from Soviet-era governmental archives: “I am not me, the horse is not mine,” which asks the hearer to disbelieve what they see and accept another version of reality.
“The major administrative law cases of the 2023 Term, along with the monumental presidential immunity decision, offer up a narrative version of this saying — one in which the Court tells the public that the thing we see is not what we see, and also that there is no need to look any harder,” she wrote. “Foundational precedents have been overruled, but there is no judge-made sea change in American governance. The Court has claimed powerful new roles for the judiciary, but the judiciary’s power and responsibilities are only as expansive as they were at the Founding. Imperiousness is humility. Supreme confidence is modesty itself.”
In Erasure, the final Part of the Foreword, Tani looks backward at the decline of Supreme Court cases foregrounding affirmative government responsibility to the nation’s “most vulnerable,” with particular exploration of what the “erasure of public welfare beneficiaries has meant for our understanding of the administrative state, the one facet of American governance that the Court has made hypervisible in recent years.”
At a time when agencies that regulate business and profit have come to dominate the docket, and social welfare agencies receive less attention from the Court, Tani urges focusing on what the Court’s administrative law holdings will mean for neglected corners of the administrative state. “The cries and complaints” from those corners “have grown fainter,” she writes, but “not because they no longer exist”; rather, “because some of our most powerful institutions have made them harder to hear.”
Tani is the third Penn Carey Law professor to pen the Foreword, after Paul Mishkin in 1965 and George A. Weiss University Professor of Law and Sociology and the Raymond Pace and Sadie Tanner Mossell Alexander Professor of Civil Rights Dorothy E. Roberts in 2019.
The Foreword was also the basis for Tani’s delivery of the Owen J. Roberts Memorial Lecture in Constitutional Law at the Law School in 2024.
Tani is the first graduate of the University of Pennsylvania’s JD/PhD program in American Legal History and holds joint appointments in the Law School and History Department. She also coordinates the Legal History Consortium at Penn, uniting the Law School and Penn’s History Department to foster innovative research, scholarship, and education in law and history.
Her research and scholarship focus on social welfare law, administrative agencies, the role of rights in the modern American State, and the history of disability law in the late 20th century.
Original source can be found here.