Penn Carey Law’s Seaman Family University Professor Karen M. Tani 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,” says 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, 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.”
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