Legislative privilege shields legislators from discovery on acts related to their legislative functions. While the Constitution’s Speech or Debate Clause affords this privilege to federal legislators, protections for state legislators instead arise from the federal common law. The Supreme Court has long recognized that the state privilege yields to important federal interests—including the need to investigate whether a legislature violates the Equal Protection Clause of the Fourteenth Amendment by enacting a law with a discriminatory purpose. This limitation on state legislative privilege helps preserve an essential balance: safeguarding legislators from interference with their core legislative functions, while allowing litigants to preserve and promote their constitutional rights.

However, a recent slate of federal courts of appeals opinions on redistricting challenges has jeopardized this careful balance, instead touting a near absolutist interpretation of state legislative privilege. As a result, when a law is passed with a discriminatory purpose, proof of that purpose can be exceedingly difficult to uncover. This Note provides a first-of-its-kind analysis of this burgeoning crisis in constitutional law. It highlights how the recent appellate court decisions expanding legislative privilege directly conflict with longstanding Supreme Court precedent on the privilege, the purposes underlying the privilege, and the limitations placed on other governmental privileges. This Note provides the first full diagnosis of this dilemma and offers a path forward towards a more coherent doctrine.

* Ross Snyder is a J.D. candidate at Stanford Law School. Lilly Weidhaas is a Ph.D. candidate in philosophy at the University of California San Diego and a J.D. candidate at Stanford Law School. Many thanks for the insight, help, and hard work provided by the editing team at the Stanford Law Review, and in particular to our amazing Senior Editor, Rebecca Berman, Managing Editor, Peri Joy Long, Associate Managing Editor, Annabel Chosy, and the Member Editors who worked hard to help bring this piece to publication: Dana Alpert, Rachel Blatt, Amy Cass, Steven Chung, Zoey Ryu, and Damian Richardson. Thanks as well to the members of the Stanford Law Review Board, in particular Greg Schwartz, Kenny Chang, Marissa Uri, Jonathan Artal, David Jiang, Jacqueline Lewittes, Andrew Nahom, Charlie Power, and Victor Wu for their tireless assistance.