"The key thing to recognize is that Trump is challenging a *constitutional convention*. If successful, his actions may create a permanent realignment of power between the branches of government in the U.S. The fundamental problem, I should note, is that the U.S. has a completely dysfunctional legislature. Since power abhors a vacuum, the rise of judicial power in the 20th century was driven by this legislative weakness. People wanted certain outcomes, and since Congress was unable to deliver, they were happy to have those outcomes imposed by the courts. But judicial supremacy has a number of pathological effects on government, including a near-complete disregard for questions of cost and efficiency. The current play by the Trump administration to expand executive power is a response to both of these issues — the absence of an effective legislature and the accumulated inefficiencies of judicial rule."
I continue to be puzzled and amazed by turns that this court and Congress and others who have toppled the guardrails didn’t and can’t imagine someone they don’t agree with in power. What is to stop a president from abolishing the court in its entirety at this point? When the executive is lawless, what incentive is there to follow laws? The same goes for the Supreme Court. They are on the verge of adjudicating themselves into irrelevance, save for a few dissents.
I’m with JMM here. I think the corruption is pretty obvious at this point. Naïveté was a better explanation a few years ago than at this late date IMHO.
The law does not require judges writing opinions to be naive. It is both relevant and permissible to consider the real world impact of a ruling. Facts can be established and considered in court. Judges are supposed to properly apply the law to these facts, which does not mean ignoring reality.
Professional and ethical judges are supposed to refrain from rulings which will be likely to backfire and cause harm.
Kavanaugh may not have actually known how ICE would interpret race as a factor in "reasonable suspicion", but he should have known. Those facts were knowable. The liberal judges told him. There are thousands of cases of police overreach and police brutality. Cops have got to have simple, clear rules. In general, cops don't have the capacity or the time to think like a lawyer during the competitive game of catching criminals. Then, Kavanaugh should have known how Trump was misusing ICE. He should have known Trump was hiring thugs and empowering them to break the law under cover of his pardons.
There is a very clear rule in tort law which says it does not matter what someone subjectively knew about the harm they might cause. If harm is objectively foreseeable, then they should have known. Kavanaugh should have known cops can't apply a "totality of the circumstances" test.
The institutions of our democracy were never built to withstand a man like Trump, whose rise to power would have been unthinkable just a quarter century ago, or even less. Trump was made for the Internet/social media age, for the attention economy and the churn in which what rises to the top is not cream, but whatever provokes the most violatile emotions. Flooding the zone with shit, overwhelming the outrage of your enemies by carrying out offenses faster than the system can respond: these are tactics against which our system has no adequate defense.
I think that Trump has a gift. Like Hitler, he’s able to convince many people that he’s on their side. They even set aside his own words to the contrary.
Great point. But the unitary executive theory of Reagan never forsaw the age of social media which magnifies the presidential power tenfold if not more. When the adults (democrats!) are in power again they will push back against the corruption and abuse of power 😎
The person who expanded Executive powers more than anyone was President Franklin D. Roosevelt. All his successors have been offshoots of that model ever since. Most of FDR’s use of those powers was beneficial for the country, but some were not. (Internment Camps for Japanese Americans). As usual, SOCTUS went along with it. See, Korematsu v United States, 323 US 413 (1944. Nothing new here.
True, and I acknowledged that, but Korematsu stands alone in the raw exercise of dubious executive power sanctioned by SCOTUS.
Same with FDR’s attempt to “pack” the Supreme Court. As he brilliantly said:”In politics , nothing happens by accident. If it happens, you can bet it was planned that way”. Amen.
This would almost be an argument for originalism, a constitutional approach opposed by the Left. Originalism has flaws, but would never allow these silly putty interpretations.
Con law is kind of an intellectual disaster. A certain stupidity and cluelessness is baked in.
Decisions are made under clashing philosophies, and no consistent approach is possible unless you toss stare decisis—which almost no one wants to do. It’s mostly politics—not necessarily bad, just what it is. A red flag is that legal scholars often can’t explain the output (the decisions); social scientists do a better job of explaining and predicting it (public opinion, key actors, institutional dynamics, etc.). That tells you something. The doctrines and arguments are playthings.
It’s a mess, but an unavoidable one - necessary for the system to work.
I think about con law the way I think about religion as a nonbeliever: interesting as a phenomenon, but I don’t take the theology seriously. Con law is theology.
I think I have finally figured you out. Your just like all liberals. You justify your hatred for Trump first with your thoughts and then you back it up with fellow liberals you present as experts. Then you find a conservative who questions some of Trump's actions and present him as the sensible alternative. You vilify Trump of course for his excessive unitary executive .actions by quoting yourself and a writer from the NY Times as if either are capable of objective thoughts. What about all the legal scholars and learned individuals who decry the unconstitutional powers our inspector generals and government agencies have today? Today's conservatives (thanks to the leadership of Donald Trump) have finally figured your tactics, and how to fight back with facts and not endless propaganda.
I wonder if any of the newspapers are going to use the headline: "Toddler Topples Tyrant."
A good piece that made me think and left me better informed. I'm happy to pay money to support writing of this quality.
Joseph Heath, a political philosopher at the University of Toronto, wrote up some comments on the basic problem back in February 2025. "Observations on the U.S. constitutional crisis": https://josephheath.substack.com/p/observations-on-the-us-constitutional
"The key thing to recognize is that Trump is challenging a *constitutional convention*. If successful, his actions may create a permanent realignment of power between the branches of government in the U.S. The fundamental problem, I should note, is that the U.S. has a completely dysfunctional legislature. Since power abhors a vacuum, the rise of judicial power in the 20th century was driven by this legislative weakness. People wanted certain outcomes, and since Congress was unable to deliver, they were happy to have those outcomes imposed by the courts. But judicial supremacy has a number of pathological effects on government, including a near-complete disregard for questions of cost and efficiency. The current play by the Trump administration to expand executive power is a response to both of these issues — the absence of an effective legislature and the accumulated inefficiencies of judicial rule."
So at age 70, John Roberts is actually a Foolish Virgin? Forgive me if I’m skeptical.
I continue to be puzzled and amazed by turns that this court and Congress and others who have toppled the guardrails didn’t and can’t imagine someone they don’t agree with in power. What is to stop a president from abolishing the court in its entirety at this point? When the executive is lawless, what incentive is there to follow laws? The same goes for the Supreme Court. They are on the verge of adjudicating themselves into irrelevance, save for a few dissents.
I’m with JMM here. I think the corruption is pretty obvious at this point. Naïveté was a better explanation a few years ago than at this late date IMHO.
The law does not require judges writing opinions to be naive. It is both relevant and permissible to consider the real world impact of a ruling. Facts can be established and considered in court. Judges are supposed to properly apply the law to these facts, which does not mean ignoring reality.
Professional and ethical judges are supposed to refrain from rulings which will be likely to backfire and cause harm.
Kavanaugh may not have actually known how ICE would interpret race as a factor in "reasonable suspicion", but he should have known. Those facts were knowable. The liberal judges told him. There are thousands of cases of police overreach and police brutality. Cops have got to have simple, clear rules. In general, cops don't have the capacity or the time to think like a lawyer during the competitive game of catching criminals. Then, Kavanaugh should have known how Trump was misusing ICE. He should have known Trump was hiring thugs and empowering them to break the law under cover of his pardons.
There is a very clear rule in tort law which says it does not matter what someone subjectively knew about the harm they might cause. If harm is objectively foreseeable, then they should have known. Kavanaugh should have known cops can't apply a "totality of the circumstances" test.
The institutions of our democracy were never built to withstand a man like Trump, whose rise to power would have been unthinkable just a quarter century ago, or even less. Trump was made for the Internet/social media age, for the attention economy and the churn in which what rises to the top is not cream, but whatever provokes the most violatile emotions. Flooding the zone with shit, overwhelming the outrage of your enemies by carrying out offenses faster than the system can respond: these are tactics against which our system has no adequate defense.
I think that Trump has a gift. Like Hitler, he’s able to convince many people that he’s on their side. They even set aside his own words to the contrary.
I think the justices are naive in the sense that they think they are using Trump to and the opposite may be true.
Great point. But the unitary executive theory of Reagan never forsaw the age of social media which magnifies the presidential power tenfold if not more. When the adults (democrats!) are in power again they will push back against the corruption and abuse of power 😎
The person who expanded Executive powers more than anyone was President Franklin D. Roosevelt. All his successors have been offshoots of that model ever since. Most of FDR’s use of those powers was beneficial for the country, but some were not. (Internment Camps for Japanese Americans). As usual, SOCTUS went along with it. See, Korematsu v United States, 323 US 413 (1944. Nothing new here.
Most of the big new deal programs were laws passed by Congress, though.
True, and I acknowledged that, but Korematsu stands alone in the raw exercise of dubious executive power sanctioned by SCOTUS.
Same with FDR’s attempt to “pack” the Supreme Court. As he brilliantly said:”In politics , nothing happens by accident. If it happens, you can bet it was planned that way”. Amen.
This would almost be an argument for originalism, a constitutional approach opposed by the Left. Originalism has flaws, but would never allow these silly putty interpretations.
Con law is kind of an intellectual disaster. A certain stupidity and cluelessness is baked in.
Decisions are made under clashing philosophies, and no consistent approach is possible unless you toss stare decisis—which almost no one wants to do. It’s mostly politics—not necessarily bad, just what it is. A red flag is that legal scholars often can’t explain the output (the decisions); social scientists do a better job of explaining and predicting it (public opinion, key actors, institutional dynamics, etc.). That tells you something. The doctrines and arguments are playthings.
It’s a mess, but an unavoidable one - necessary for the system to work.
I think about con law the way I think about religion as a nonbeliever: interesting as a phenomenon, but I don’t take the theology seriously. Con law is theology.
I think I have finally figured you out. Your just like all liberals. You justify your hatred for Trump first with your thoughts and then you back it up with fellow liberals you present as experts. Then you find a conservative who questions some of Trump's actions and present him as the sensible alternative. You vilify Trump of course for his excessive unitary executive .actions by quoting yourself and a writer from the NY Times as if either are capable of objective thoughts. What about all the legal scholars and learned individuals who decry the unconstitutional powers our inspector generals and government agencies have today? Today's conservatives (thanks to the leadership of Donald Trump) have finally figured your tactics, and how to fight back with facts and not endless propaganda.
Sorry. It’s Korematsu v United States, 323 US 214 (19444). Read it.