Supreme Betrayal: How the Supreme Court and Constitutional Law Have Failed America

Using the Court’s decision allowing the President to remove members of independent agencies from their offices we range rather widely—into a discussion of departmentalism, the strategic problems facing democrats after they expel autocrats from office, and the choice between restoring the pre-Trump administrative state and reconstructing a new administrative state with a new balance among expertise, political control, and direct popular participation in decision-making in a response to some sensible impulses underlying contemporary populism.

We use a recent decision by the Fifth Circuit upholding a Texas statute requiring the display of the Ten Commandments in public school classrooms as a jumping off point to discuss not only the religion clauses but a much more general problem of constitutional theory, which we frame as a problem of federalism but actually ranges much more broadly: What body of people gets to make decisions that govern “themselves”? City councils, state legislatures, Congress? Mark proposes a partial solution in which the courts set a “default rule” identifying the first mover and then that body can choose from the entire range of decision-makers to set policy. Mike finds this interesting but is skeptical and, as Mark works out the account, wonders whether the courts contribute anything to making policy under Mark’s scheme. (Mark thinks they do!)

We discuss the slush fund kerfuffle with Professor Smauel Bagenstos, who served as general counsel to the Department of Health and Human Services and has written a forthcoming article on slush funds. One theme is that Trump’s lawyers got a decent way toward giving J6 rioters access to federal funds in a way consistent with the formal law but muffed it at the level of detail. Another is that it’s really silly—and says something bad about some kinds of discourse about this sort of thing—to focus on legal formality. And, if you hold out until the end you get one of Mark’s favorite quotations about lawyers, from Carl Sandburg.

In our second episode on the Callais decision we turn to criticism, though only after doing our best to identify some things in the decision that might be correct. Among our concerns are whether the Court was right in saying that things have changed (for the better) since 1965, whether the opinion was a reasonable application of the Court’s prior decision to refrain from federal judicial regulation of partisan gerrymandering, and whether partisan gerrymandering is defensible in places where partisan affiliations are highly correlated with race. And we raise questions about the Court’s apparent commitment to letting district boundary decisions—and more—be made by democratically responsible bodies when those decisions actually constitute the kind of democracy we have.

In the first of two episodes about the Callais decision we speculate about its immediate impact on the 2026 elections, with Mark trying to minimize that impact and Mike arguing that it’s likely to be significant. Then we provide a detailed explanation of the historical background of the 1965 Voting Rights Act, emphasizing the ways in which it was initially interpreted (a combination of generosity and restrictiveness), how Congress responded, and then how the Court began to narrow its effects. The doctrinal details, while intricate, are important for listeners trying to understand exactly why the Callais decision is so threatening to minority representation.

Today we take up a challenge to our views about the tension between democratic self-governance and the contemporary form of judicial that Mark draws from the scholarship of political scientists including Robert Dahl. Dahl’s challenge, in a shorthand, is that American politicians, speaking for we the people, like that form of judicial review—that it has democratic credentials. Other political scientists identify different periods or “regimes” of dominant majorities, and judicial review fits comfortably when there is such a majority. Mike raises questions about the broadbrush nature of Dahl’s account and about the important anti-democratic role judicial review plays when no dominant majority is in place (during interregnums) and in thwarting local majorities not in line with the national majority. Mark counters with the observation that sometimes the local majorities are oppressing people who are in line with the national majority (blue cities in red states or vice versa), and that in any event the fact that one regime eventually replaces another diminishes the degree to which any judicial decision is entrenched and thwarts what Mike calls the ambitions of judicial review. There’s a lot more detail in this rather long episode, and we’ll revisit some of its themes in later episodes.

In this episode we get to the heart of Mike’s book, his argument that judicial review as practiced today can’t be justified because justification requires a foundation in good constitutional theories—and none of the theories on offer are good enough. After a minor skirmish over what’s good enough, we take up a feature of Mike’s account that he finds attractive—that deconstitutionalizing everything would open the way for pragmatic compromises on the deep issues of principle that divide us. Mark responds that, while that might have been true in the past when our parties were coalitions of disparate interests, it’s no longer true today where our parties are ideologically unified and strongly polarized. He argues that in today’s world the result of de-constitutionalization would lead to take-or-leave-it legislation by whoever happens to control the levers of power, not messy compromises. We leave it at that, with further discussion to come in our final episode on Mike’s book.

We begin our second episode on Mike's new book Why the Constitution Cannot Save Us by discussing different ideas of popular constitutionalism, with Mike restating his concern that popular constitutionalism can misdirect our attention from what really matters--whether policies are good or bad--to unproductive discussions of what the Constitution "really" means and Mark restating his sense that the language of "the Constitution" does motivate some people to act in ways they wouldn't otherwise. Then we turn to some suggestions Mike makes in his book about compromises that would become available were we to "deconstitutionalize" policy debates. Mark wonders why some of the proposed compromises would be acceptable to people on both sides and observes that the depth of division today makes pragmatic compromises on issues of deep and divisive principle quite difficult to achieve. Mike then offers some ideas about smaller bore reforms that the Court and Congress could adopt to turn doen the heat of constitutional discussion. Mark observes that those reforms don't seem to have much purchase with either the Court or Congress and we end up agreeing that it might make sense for people like us to work toward changing the composition of the Court and Congress so that those reforms would be not just in the Overton window but actually taken seriously.

We try to sell some books!—Mike’s forthcoming The Constitution Cannot Save Us and Mark’s Who Am I to Judge? Mike describes his book and then we talk about the role of law clerks in writing Supreme Court opinions today because the topic actually gets us to the core disagreement between us, about the failings of constitutional theory and the role of judgment and craft in justifying the power the Court exercises. We don’t resolve our disagreements but maybe listeners will learn something from the disagreement—and of course come to their own conclusions.

We take on the decision invalidating President Trump’s tariffs. Mike offers what he calls a democratic defense of a decision that would have, in his terms, preserved the status quo and let the tariffs go into effect, and offers a backup explanation that doing so would be more likely to generate a productive dialogue between Congress and the President possibly resulting in more precise delegations of authority to the President. Mark says that he doesn’t understand the democratic argument and isn’t convinced by the back up argument. Disagreement is more muted about the major questions doctrine, the second topic in the episode, where we agree that as a doctrine it empowers the courts rather than Congress, but that it might be a component of a common sense analysis of statutory language in its overall context. Finally we discuss possible explanations for how some of the justices voted, and here too a disagreement surfaces, with Mike arguing that what Mark calls superficial political explanations—country-club Republicans don’t like tariffs, Democratic appointees don’t like Trump—are important and Mark arguing that they are, well, superficial, and that interesting explanations for voting behavior lay deeper.