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

Why are the birthright citizenship cases both not such a big deal and a big deal? After going through the arguments for the Trump administration’s position in some detail (the arguments against it are so obvious that we don’t spend much time on them), we situate the cases in the administration’s larger policy and ideological agendas: from a policy point of view they aren’t that big a deal, but from an ideological one they might be.

Our conversation with Will Baude covers his ideas about originalism as "our law" and the implications of his position for a constitution--ours, perhaps--that isn't normatively attractive overall.

We pick up after our summer break with a recap of our arguments about constitutional theory. Then we discuss the pending Supreme Court decision about President Trump’s power to impose tariffs, getting into some weeds that most popular commentary avoids, including a lot of detail about the major questions doctrine.

Today we apply our way of thinking about the Constitution—what we’ve been calling constitutional theory—to a topic that isn’t usually discussed in those terms even though it gets a lot of attention: constitutional criminal procedure, focusing on police practices like stop-and-frisk and on the Miranda warnings. As usual our questions are about the connection between judicial (and political and bureaucratic) regulation of police practices and the people’s ability to govern itself. And as usual we divide (a bit) over whether courts have made things better, whether they’ve actively made things worse by exacerbating the race-based inequalities produced by the politics of crime, and whether the courts might come up with better ways of regulating police conduct that would enhance self-government.

This current events episode uses ICE arrests of public officials and protestors as the vehicle for a discussion of jury nullification as a constitutional or political practice. We begin with the story of abolitionist interference with the renditions—a word in the news again—of fugitives from enslavement as authorized by the 1850 Fugitive Slave Act. We use jury nullification to explore the opposition between “law” and “non-law” in political practice. We also discuss more briefly some aspects of the First Amendment defenses Harvard University is mounting against the Trump administration’s attacks—and reflect even more briefly on the importance of preserving civil society’s institutions as proto-authoritarians seek to move their agenda forward.

Joseph Fishkin and William Forbath join us to discuss their book The Anti-Oligarchy Constitution. We talk about what their book's title describes, why they think it matters to describe it as a "constitutional" position rather than a "mere" set of policy prescriptions, the importance of historical traditions in thinking about the political use of the word "constitutional," the advantages and disadvantages of using that word as an intensifier, and more (including a digression of the possibility of "secession" or a division of the United States into "blue" and "red" nations)."

Mike gets a chance to lay out his approach. We begin with a longish discussion of the Emancipation Proclamation: Was it merely a “bill of lading”/military measure (Mark) or an extraconstitutional action justified because it was right (Mike)—or both? Mike then develops his approach by distinguishing between simple justice and legal justice and argues that legal justice interferes with the accomplishment of simple justice by trying to shut down disagreements about simple justice requires with an authoritarian “Get over it!” His alternative is the development of norms of reciprocity, mutual respect, compromise, and more to guide the temporary resolution of such disagreements through ordinary politics. Mark snipes along the way, wondering whether those norms can be retrieved from today’s swamps of ordinary politics.

The final (!) episode laying out Tushnet’s “craft” account of what judicial review done well looks like. We discuss Tushnet’s argument that good judges use legal reasoning, not direct appeals to justice, to explain and justify what they do. His shorthand is that, just as a well-designed legislative process gives everyone a fair shot at getting their policies adopted and so produces outcomes that those who lose out should and typically do accept, so a well-performed judicial function gives everyone a fair shot at making reasoned arguments that judges evaluate on the merits. And that means, for him, that good judges engage in legal reasoning, working with the plumbing of our constitutional system. Seidman argues that legal reasoning is so far removed from the way ordinary people think about the issues raised in constitutional cases that the judges Tushnet admires or hopes to see on the Court can’t resolve constitutional controversies in a way that those whose positions are rejected should or are likely to accept. Along the way we talk about the mindset judges should bring to their task, criticizing Justice O’Connor’s slogan, “Sometimes Wrong but Never in Doubt.”

We have our first guest! We engage in a wide-ranging conversation with Aziz Rana, jumping off from his important book The Constitutional Bind: How Americans Came to Idolize a Document That Fails Them (which we urge you to buy and read). Rana’s book ends before the turn of this century, and our conversation both extends the ideas he develops there (particularly about the connection between the role of the US on the international scene and the US constitutional creed), and takes up his and our thinking about contemporary issues.

Another discussion of current events and constitutional theory. We distinguish between “small bore” and “large bore” challenges to Trump’s agenda—the former dealing with individual injustices and the latter with more comprehensive programs like tariffs—and suggest that courts might do something about the former but are less likely to do anything about the latter. We disagree as usual about the potential political impact of interventions in small bore cases. And we wrap the episode up with a discussion of whether Trump could serve a third term through creative constitutional interpretation or a workaround—and end up with arguing over the connection between some embedded norms like a “no third term” norm and the Constitution itself. More about that to come.