It's getting increasingly difficult to keep tabs on even the Supreme Court-related (and Court-adjacent) news. Today's issue looks at where things stand (and what to expect next) across six key topics.
Hi Professor Vladeck, I'm a student at the UGA School of Law and I love this substack of yours. So I'm very excited to hear you speak to us at the law school next week!
I was glad to see a mention of Justice Douglas, for a very personal reason: he was my father’s high-school debate coach in Yakima Washington before packing his bags for the other Washington.
About Todd Blanche and Federalist meeting where he spoke? What was audience reaction? That is what I want to know to understand the state of that Society? How much more corrupt has it gotten from its Leonard Leo influence to now? Were there any brave souls who objected? Who walked out? Who booed? Or, was the applause overwhelmingly approving? As to Todd Blanch (the pedophile protector’s lawyer) himself, well there was no surprise there; he apparently left his ethics in the toilet long ago!
I cannot bring myself into affinity with farmers. They voted for Trump. No doubt farmers would be a lot smarter had they gone to Trump University. Let farmers eat soybeans. Soybeans are a great source of protein.
“All of us who are dismayed by the present state of the union, this is no time to give up,” Biden declared. “It’s time to get up. Get up now, get up.”
If you have become overwhelmed, rely on my 2 buckets to sanity. 2 buckets says stay in the fight. We are winning with a year to midterms. If you stay in, we will shut them down.
“[T]hese Art. III judges [are] literally telling the president, the executive, what he can and cannot do". Yeah, that's the point, Todd; we call it 'checks and balances'. Did Blanche never learn about our governmental structure in school?
A question about the tariffs case: We expect the Court to consider, in its deliberations, that tariffs are the duty of Congress, not of the Executive. But in this case, the majority party in Congress has tacitly, or even willingly, handed the authority over to the Executive without a hint of reservation. Do you expect that abdication to be a factor in the Court's deliberation? Ie, will the Court ask itself why it should deliver back to Congress a power Congress doesn't seem to care about?
It may be something on the justices' minds, but historically, the Court has been focused less on the current political reality than on how the Constitution divides the powers the branches can choose to exercise. Were it otherwise, Congress's indolence would be a basis for finding substantive authorization for almost anything a President wants to do...
Steve, leave the children at home well protected w a responsible adult. Take Karen out to dinner or a hotel or both and reminisce about the “olden times” fourteen years ago. It can help to slow life down and add a little “spark” to the evening. I wish you and Karen many more anniversaries and may they all be happy.
Thank you for all you do and for clarifying many of the legal issues before the court. I really appreciate your incites and clarifications. Keep up the valuable and important work you do for us.
Because I know several trans individuals who are simply trying to live their lives as productive and contributing citizens, e.g., one high-profile example being Sarah McBride, I am sad and sickened by the decision to deny them access to a passport that reflects their identity, even when they have medical paperwork to show support their status. I'm wondering if this issue will ever be revisited because it creates an unnecessary burden for so many!
It seems The Framers did not anticipate how increased life expectancy would intensify the non-democratic character of SCOTUS, to the extent that SCOTUS has qualitatively changed from being virtuously non-democratic to being perniciously anti-democratic.
Let me try to explain:
By providing for lifetime appointments, The Framers hoped to insulate the federal judiciary—somewhat—from the effects of political instability that is natural in a democratic form of government. However, The Framers certainly did not intend to untether the judiciary—completely—from the democratic influence of “We The People.” After all, the government—including even the judiciary—is supposed to be “by The People.”
The tethers of the democratic influence over the courts by The People—the reins of democratic rule that make the judiciary ultimately subject to and responsive to the rule of We The People—run from We The People through the hands of our only nationally elected official, the President, through his power to appoint judges.
Thus, The People’s proper influence over the judiciary was effectuated through—at the fairly short interval of every four years—the election of a president who would in turn be likely to have an opportunity to choose one or two new SCOTUS justices who would typically serve on the Court for an average of around 10 years in the era of the framing.
Contrast that with current situation when, with increased life expectancies, at the end of the 20th century the average time a justice served on SCOTUS had doubled to 20 years, And now it has become the expected norm for justices to remain on the Court for 30 or more years. The effect of the doubling and tripling of justices’ time on SCOTUS is that cord of The People’s democratic control over the Court has been so attenuated and so slackened that SCOTUS is now institutionally and structurally untethered from and unresponsive to the will of We The People.
We now have a SCOTUS that is so dangerously untethered from the proper democratic influence of We The People that a thirty-year-old woman’s fundamentally life-altering rights under Roe v. Wade were overturned by the decisive vote of a justice who was put on the high court before she was even born, who was put there by a president who was voted out before she was even born, and who was confirmed by a group of senators of which only two bumbling supra octogenarians remain in office.
This untethering of SCOTUS from the democratically necessary and politically salutary influence of We The People is, I believe, the root cause of SCOTUS’s dangerous loss of legitimacy.
Jackson’s dissent in Trump v Orr is spot on and just emphasizes the willful disregard of basic reasonable standards and crazy amount of deference they’re giving this administration. Just the “harm” question by itself is so crazily lopsided. It’s not even close. There’s no reasonable argument here. I’d love to see a simple score card on how they’re applying the basic principles of relief in these emergency petitions.
Mazel tov on your anniversary!
What an utterly delightful summary. Happy anniversary, Steve!
When reading the penultimate sentence of Hot Topic 4, I was unable to read "factual" without mentally inserting quote marks around it.
Hi Professor Vladeck, I'm a student at the UGA School of Law and I love this substack of yours. So I'm very excited to hear you speak to us at the law school next week!
Thanks Yoni! Looking forward to it!
I was glad to see a mention of Justice Douglas, for a very personal reason: he was my father’s high-school debate coach in Yakima Washington before packing his bags for the other Washington.
Happy Anniversary!
About Todd Blanche and Federalist meeting where he spoke? What was audience reaction? That is what I want to know to understand the state of that Society? How much more corrupt has it gotten from its Leonard Leo influence to now? Were there any brave souls who objected? Who walked out? Who booed? Or, was the applause overwhelmingly approving? As to Todd Blanch (the pedophile protector’s lawyer) himself, well there was no surprise there; he apparently left his ethics in the toilet long ago!
I cannot bring myself into affinity with farmers. They voted for Trump. No doubt farmers would be a lot smarter had they gone to Trump University. Let farmers eat soybeans. Soybeans are a great source of protein.
“All of us who are dismayed by the present state of the union, this is no time to give up,” Biden declared. “It’s time to get up. Get up now, get up.”
If you have become overwhelmed, rely on my 2 buckets to sanity. 2 buckets says stay in the fight. We are winning with a year to midterms. If you stay in, we will shut them down.
https://hotbuttons.substack.com/p/too-much-two-buckets-to-sanity?r=3m1bs
“[T]hese Art. III judges [are] literally telling the president, the executive, what he can and cannot do". Yeah, that's the point, Todd; we call it 'checks and balances'. Did Blanche never learn about our governmental structure in school?
A question about the tariffs case: We expect the Court to consider, in its deliberations, that tariffs are the duty of Congress, not of the Executive. But in this case, the majority party in Congress has tacitly, or even willingly, handed the authority over to the Executive without a hint of reservation. Do you expect that abdication to be a factor in the Court's deliberation? Ie, will the Court ask itself why it should deliver back to Congress a power Congress doesn't seem to care about?
It may be something on the justices' minds, but historically, the Court has been focused less on the current political reality than on how the Constitution divides the powers the branches can choose to exercise. Were it otherwise, Congress's indolence would be a basis for finding substantive authorization for almost anything a President wants to do...
Steve, leave the children at home well protected w a responsible adult. Take Karen out to dinner or a hotel or both and reminisce about the “olden times” fourteen years ago. It can help to slow life down and add a little “spark” to the evening. I wish you and Karen many more anniversaries and may they all be happy.
Thank you for all you do and for clarifying many of the legal issues before the court. I really appreciate your incites and clarifications. Keep up the valuable and important work you do for us.
Because I know several trans individuals who are simply trying to live their lives as productive and contributing citizens, e.g., one high-profile example being Sarah McBride, I am sad and sickened by the decision to deny them access to a passport that reflects their identity, even when they have medical paperwork to show support their status. I'm wondering if this issue will ever be revisited because it creates an unnecessary burden for so many!
It seems The Framers did not anticipate how increased life expectancy would intensify the non-democratic character of SCOTUS, to the extent that SCOTUS has qualitatively changed from being virtuously non-democratic to being perniciously anti-democratic.
Let me try to explain:
By providing for lifetime appointments, The Framers hoped to insulate the federal judiciary—somewhat—from the effects of political instability that is natural in a democratic form of government. However, The Framers certainly did not intend to untether the judiciary—completely—from the democratic influence of “We The People.” After all, the government—including even the judiciary—is supposed to be “by The People.”
The tethers of the democratic influence over the courts by The People—the reins of democratic rule that make the judiciary ultimately subject to and responsive to the rule of We The People—run from We The People through the hands of our only nationally elected official, the President, through his power to appoint judges.
Thus, The People’s proper influence over the judiciary was effectuated through—at the fairly short interval of every four years—the election of a president who would in turn be likely to have an opportunity to choose one or two new SCOTUS justices who would typically serve on the Court for an average of around 10 years in the era of the framing.
Contrast that with current situation when, with increased life expectancies, at the end of the 20th century the average time a justice served on SCOTUS had doubled to 20 years, And now it has become the expected norm for justices to remain on the Court for 30 or more years. The effect of the doubling and tripling of justices’ time on SCOTUS is that cord of The People’s democratic control over the Court has been so attenuated and so slackened that SCOTUS is now institutionally and structurally untethered from and unresponsive to the will of We The People.
We now have a SCOTUS that is so dangerously untethered from the proper democratic influence of We The People that a thirty-year-old woman’s fundamentally life-altering rights under Roe v. Wade were overturned by the decisive vote of a justice who was put on the high court before she was even born, who was put there by a president who was voted out before she was even born, and who was confirmed by a group of senators of which only two bumbling supra octogenarians remain in office.
This untethering of SCOTUS from the democratically necessary and politically salutary influence of We The People is, I believe, the root cause of SCOTUS’s dangerous loss of legitimacy.
Jackson’s dissent in Trump v Orr is spot on and just emphasizes the willful disregard of basic reasonable standards and crazy amount of deference they’re giving this administration. Just the “harm” question by itself is so crazily lopsided. It’s not even close. There’s no reasonable argument here. I’d love to see a simple score card on how they’re applying the basic principles of relief in these emergency petitions.
Wow. I’m exhausted just reading this. I can’t imagine the toll it took to research and write it! Also mazel tov on your and Karen’s anniversary.
Steve, Karen,
Congratulations!!!!
It is far from "stunning" that the Trump Administration is attacking the courts. At least, to the degree that word suggests surprise.
Anyway, congrats on the anniversary. Try to take a few minutes off from writing to enjoy it.