Efforts to defend the Supreme Court *because* of its independence miss both the real-world impacts of its behavior and the reason *why* independence matters.
I would add to the reasoning that the Trump administration has been testing the legal envelope in nearly every way imaginable in its second term, and so its losing in three of the most truly outrageous examples of that testing may simply mean that it was thereby able to bolster the illusion that the Court was actually reining it in, when it never should have had any chance of winning any of those three cases (leaving aside the fourth, interim docket case)
As Professor Vladeck noted, some of the best writing about the role of courts under our Constitution is in Federalist No. 78. It was written to explain why Americans should support ratification of the Constitution. It explains what the people established as the law by ratifying the Constitution. It was the foundation for (and even was repeated in) much of the best analysis in Marbury v. Madison about the constant duty of judges to fulfill their oaths to support the Constitution.
Independence means that "judges [actually] do their duty as faithful guardians of the Constitution." The "necessary independence" of judges means their "inflexible and uniform adherence to the rights of the Constitution, and of individuals, which we perceive to be indispensable in the courts of justice." "It can be of no weight to say that the courts, on the pretense of a [law's] repugnancy [to the Constitution], may substitute their own pleasure to the constitutional intentions of the legislature" (or the Constitution of the People). "To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents."
"This independence of the judges is equally requisite to guard the Constitution and the rights of individuals from the effects of those ill humors, which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves, and which, though they speedily give place to better information, and more deliberate reflection, have a tendency, in the meantime, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community."
"A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore" is the duty of judges "to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people [in the Constitution] to the intention of their agents" [in any level or branch of government]. "Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people [under to the Constitution] is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental."
The People in Article III of our Constitution established that federal "judicial Power shall extend" no further than determining and explaining how "this Constitution, the Laws of the United States, and Treaties" govern the fact and circumstances of particular "Cases" or "Controversies." That is the substance of the duty of "judicial Officers" to "support this Constitution" as the paramount part of "the supreme Law of the Land," as Article VI emphasizes. That's why federal law (5 U.S.C. 3331) requires every judge to expressly acknowledge that every judge's foremost and constant duty is to "support and defend the Constitution of the United States against all enemies, foreign and domestic" (regardless of their position or party) and to "bear true faith and allegiance to the [Constitution]," not any person or party.
Hi, Professor Vladeck. If not already on your radar and if possible, could you please cover the following case dealing with an APA vacatur from the Northern District of Texas vacating the 2024 EOIR final rule, “Efficient Case and Docket Management in Immigration Proceedings.” (Giving IJs authority to admin close)?
As an immigration attorney (WCL grad), I am especially troubled by this development. I am striving to understand premption and consent decrees but would greatly appreciate your insight. I truly hope it's not this easy to run around regulations and avoid the rules making process.
If a majority (or supermajority) of the Justices have a jurisprudential ideology that aligns with the arguments that might overturn precedents they do not agree with and bring about these changes with alacrity that might be at odds with historical procedure, are they not "independent"? It is judge made law, but there is independence in that. The failure lies with a breakdown of checks and balances, principally from the Congress, a situation which the Court helped to create.
As the text of our Constitution established (and as Hamilton in Federalist No. 78 and SCOTUS in Marbury v. Madison re-emphasized) there is no such thing as "judge made law" (except to the extent that judges write rules that govern courts and the conduct of judges and other participants in litigation). The constitutional role of judges is not to make law. The duty of judges is to interpret, construe and apply, first, the Constitution, and second, subordinate parts of the supreme law of the land.
Every legitimate jurisprudential ideology or doctrine is (and must remain) subordinate to the Constitution and serve to fulfill judges' oaths to support the Constitution. As SCOTUS explained in Marbury v. Madison, any contrary "doctrine would subvert the very foundation of all written constitutions. It would declare that an act, which, according to the principles and theory of our government, is entirely void; is yet, in practice, completely obligatory. It would declare, that if" a public servant does "what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual. It would be giving to" such purported public servant "a practical and real omnipotence, with the same breath which professes to restrict their powers within narrow limits. It is prescribing limits, and declaring that those limits may be passed as pleasure."
I have never understood people who make this argument. Judges make law all the time in a common law system. They also make law when they interpret statutes and constitutional provisions. As Holmes (a better legal theorist than Hamilton) said, the law is not a brooding omnipresence in the sky. It's the product of iterative judicial craft.
Basically almost all law in areas where cases are justiciable is judge made.
Dilan, it's a falsehood to say that we have a common law system. Britain had a common law system--a system in which judges actually did make the law. But those judges made law as representatives of the crown, not as an independent branch of government. Judges were known as "lions under the throne" because they were part of the executive branch, and they supported the executive in enforcing the law.
After the U.S. declared independence from Britain, Americans continued to rely on the common law, but only as a matter of necessity. It takes a lot of time to write all the laws that are "necessary and proper." But the People in Article I established and emphasized that "All legislative Powers herein granted" were "vested" exclusively in "Congress," and those powers were defined to mean the power to "make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers [of Congress], and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof," (i.e., in the executive or judicial branches or officers).
Congress has all the power to make all the laws. That's why the People emphasized in Article II that the President's duty is to "take Care that the Laws be faithfully executed" (and otherwise to take any actions that are necessary and proper to "preserve, protect and defend the Constitution").
It's also a falsehood to say that judges "make law when they interpret statutes and constitutional provisions." Alexander Hamilton in Federalist No. 78 (which I quoted above) and Chief Justice Marshall in Marbury v. Madison emphasized this principle repeatedly.
The People in Article III of our Constitution established that federal "judicial Power shall extend" no further than determining and explaining how "this Constitution, the Laws of the United States, and Treaties" govern the fact and circumstances of particular "Cases" or "Controversies." That is the substance of the duty of "judicial Officers" to "support this Constitution" as the paramount part of "the supreme Law of the Land," as Article VI emphasizes. That's why federal law (5 U.S.C. 3331) requires every judge to expressly acknowledge that every judge's foremost and constant duty is to "support and defend the Constitution of the United States against all enemies, foreign and domestic" (regardless of their position or party) and to "bear true faith and allegiance to the [Constitution]," not any person or party.
Jack, with due respect, it would easier to follow you if you distilled your thoughts into a single post of a few paragraphs.
From my layman's point of view, there may be a difference of definitions here.
If "make the law" means making it up out of whole cloth, or patently subverting the Constitution, then of course judges should not "make the law". But if "make the law" means doing textual analysis, probing original intent, etc., in order to resolve ambiguities in a statute or the Constitution (e.g., what exactly does "liberty" encompass?), then judges necessarily "make the law". After all, someone has to resolve such disputes, and that's what courts are for.
John, I heartily wish a few paragraphs would suffice. But even many paragraphs seem not to suffice.
As SCOTUS has emphasized repeatedly, we must start with the text of the Constitution. The words "make" and "law" repeatedly are used in conjunction in the Constitution. Search on-line in the Constitution for the words "make" or "court" or "judicial" and see if you can find anything that supports your assumption that "make the law" might mean "doing textual analysis, probing original intent, etc., in order to resolve ambiguities in a statute or the Constitution."
Our state and federal constitutions emphasize that legislatures make law, executives execute the law, and judges decide (and explain) how particular cases or controversies are governed by the law that already exists. Judges don't have any power to in any way "make" anything that legitimately can be labeled "law" (except maybe to the extent necessary and proper to make rules that govern the operation of courts).
Many SCOTUS opinions (and even common sense and dictionaries) establish that judges have no power to "make" law. Only people who don't understand the crucial horizontal divisions of power in our Constitution (or who seek to deceive or who are demonstrating reckless disregard for the truth) would even attempt to persuade anyone that American judges were given some general power to "make law."
Please consider (again) what Scalia highlighted about the separation of powers and about Federalist No. 47. Many powers were divided as they were in our Constitution (horizontally and vertically) to protect the People from tyranny (by factions of purported public servants and even by factions of other parts of society).
Consider more of what James Madison included in Federalist No. 47 (because it was common knowledge in the 1770's and 1780's):
"[T]he preservation of liberty requires that the three great departments of power should be separate and distinct. The oracle who is always consulted and cited on this subject is the celebrated Montesquieu."
Montesquieu was celebrated for emphasizing the following.
"The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many" (no matter how they are given or usurp such power) is "the very definition of tyranny."
Moreover, "[t]here can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates," or "if the power of judging be not separated from the legislative and executive powers."
"When the legislative and executive powers are united in the same person or body," says he, "there can be no liberty, because" then "THE SAME monarch or senate" could "ENACT tyrannical laws" and "EXECUTE them in a tyrannical manner. "
"Were the power of judging joined with the legislative, the life and liberty of [people] would be exposed to arbitrary control, for THE JUDGE would then be THE LEGISLATOR. Were it joined to the executive power, THE JUDGE might behave with all the violence of AN OPPRESSOR."
John, consider a couple crucial self-evident truths that many fail to see.
The reason the First Amendment says that "Congress shall make no law . . ." is that Article I emphasized and established that the People vested in our ELECTED representatives in Congress, alone, the power "To make all Laws" that turn out to "be necessary and proper for carrying into Execution" absolutely all the "Powers vested by this Constitution" in any part of the national government. When our elected representatives in Congress lack the power to make a law, no other part of the national government could possibly have such power.
Our elected representatives have the power to "make all Laws" that turn out to "be necessary and proper for carrying into Execution" absolutely all the "Powers vested by this Constitution" in any part of the national government. Crucially, however, the People reserved to ourselves the power to remove the entire House of Representatives and 1/3 of the Senate every 2 years.
In addition, nothing in Article III even indicates that the People vested any power in unelected judges to even so much as make rules governing the operation of courts. Instead, the People in Article I expressly and clearly vested in Congress, alone, the power to "make all Laws" that turn out to "be necessary and proper for carrying into Execution" all federal judicial powers.
Jack: This is in response to both your replies to me.
Your comments seem to use "make law" in the first sense I described, and in that sense I don't dispute anything you wrote.
Suppose a state law prohibits some action (use of contraception, same-sex marriage, abortion, etc.), and suppose that some people object that the law violates their constitutional rights. The case makes its way to the U.S. Supreme Court, which has to determine if the law is consistent with the Constitution. Suppose the Court decides that the law violates the Constitution. This often involves resolving ambiguities in the Constitution (e.g., what is the scope of "liberty"?).
In practice, the Court's interpretation has changed the legal rules that apply. Before, people could not (legally) engage in the given action (in the state(s) in question), now they can. Some people might say that the Court "made law", though not in the same sense as Congress "makes laws".
Do you only object to the use of the phrase "make law" in such a case? If that's your only objection, then you might consider accepting that some people use words differently than you, and as long as you understand what they mean, you can avoid talking at cross-purposes.
If you object to something more substantial than phrasing, perhaps you can use my example to clarify what you object to.
Dilan, I like to quote Justice Scalia sometimes, in part, because he often spoke the truth, and in part, because other people like to rely on Justice Scalia to pretend to justify egregiously unconstitutional executive powers. Regarding the rule of law, and separation of powers, Justice Scalia put it pretty well in 1988 in his (famous) dissenting opinion in Morrison v. Olson (echoing James Madison in 1788). The following is as relevant to the subordinate role of the judiciary as it is to the subordinate role of the executive (subordinate to our Constitution, which expressly makes the other two branches subordinate to laws enacted by Congress):
"That is what this suit is about. Power. The allocation of power [ ] in such fashion as to preserve the equilibrium [that the People by] the Constitution sought to establish—so that 'a gradual concentration of [ ] powers' [Federalist No. 51 (J. Madison)] can effectively be resisted."
"It is the proud boast of our democracy that we have 'a government of laws and not of men.' " That comes from the Massachusetts Constitution of 1780 regarding the separation of powers between legislative, executive and judicial departments. "The Framers of the Federal Constitution similarly viewed the principle of separation of powers as the absolutely central guarantee of a just Government. In No. 47 of The Federalist, Madison wrote that “[n]o political truth is certainly of greater intrinsic value, or is stamped with the authority of more enlightened patrons of liberty.” Justice Scalia emphasized, "Without a secure structure of separated powers, our Bill of Rights would be worthless."
Justice Scalia also highlighted that in Federalist No. 51 Madison emphasized the following crucial and dispositive truth about our Constitution and how the People chose to vest less power in the Executive and Judicial branches than in the Legislative branch: “it is not [even] possible to give to each department an equal power[. Moreover, i]n republican government, the legislative authority necessarily predominates.”
Incidentally, Justice Holmes took a long time to catch up to Hamilton regarding our freedom of expression and communication. Before Holmes became a SCOTUS justice, he was a powerful opponent of our freedom of expression. That famously changed after Holmes became a SCOTUS justice.
But even as an attorney, Hamilton was crucial in helping establish the nature of our freedom of expression and communication. In 1802, Hamilton represented Croswell in People v. Croswell. That was a landmark New York case establishing not only that truth is a defense in libel, but (far more importantly) anyone seeking to punish or penalize any criticism must prove how it was false. So people cannot be punished or penalized for criticism of our public servants--even the president--without proof of how the criticism was false. (Croswell was being prosecuted in New York for having criticized President Thomas Jefferson). SCOTUS finally started to emphasize those same principles in 1964 in New York Times Co. v. Sullivan and Garrison v. Louisiana.
Dilan, are you sure about your assertion that Holmes was a better legal theorist than Hamilton? Hamilton devoted very much of his adult life to asserting and defending constitutional principles--the same principles that were written into the Constitution that he helped write and which he helped even more to have ratified (including by writing most of the 85 Federalist Papers).
Washington praised and recommended publications such as the Federalist Papers because they "have thrown new lights upon the science of Government, they have given the rights of man a full and fair discussion, and have explained them in so clear and forcible a manner as cannot fail to make a lasting impression upon those who read the best publications of the subject, and particularly the pieces under the signature of Publius," (i.e., The Federalist Papers). After the Constitution was ratified and Washington was chosen as the first president, Washington chose Hamilton to be one of his closest advisors (Secretary of the Treasury) to implement the new Constitution.
As a lawyer, Hamilton asserted constitutional principles, e.g., regarding the freedom of expression and communication that (about 150 years later) were finally included in SCOTUS opinions. And to this day, SCOTUS justices commonly look to the Federalist Papers to try to better understand or better explain the text and purpose of the Constitution.
Dilan, in Marbury v. Madison, SCOTUS emphasized that "It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each."
The second and third sentences explained the limits of the power "to say what the law is." Obviously, saying that "the province and duty of the judicial department" is "to say what the law is" does not mean that judges have the power to make law. The People in our Constitution (Article I) emphatically established that the power to "make all laws" that are "necessary and proper" for national government was vested exclusively in "Congress." But, as Article I also emphasized in its first words, even the power of Congress to make law was explicitly limited. Only the limited "legislative Powers herein granted shall be vested in a Congress."
Judges definitely and clearly don't have (and not even Congress can give them) the power to change our Constitution or make law in violation of our Constitution. As our first words as one people declared and established, "the People of the United States" acted as the supreme (and the only) legislative body for our new nation as of June 21, 1788 to "ordain and establish this Constitution for the United States of America." As Article VII established and emphasized, "the Establishment of this Constitution" was accomplished by specially conducted "Conventions" of the People "ratifying the Same."
As Article VI established and emphasized, the People established that our "Constitution, and [only] the Laws of the United States which shall be made in Pursuance thereof" (i.e., only laws that are "necessary and proper") "and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land." That obviously means that our Constitution is the paramount part of the supreme law of the land (as SCOTUS repeatedly emphasized in Marbury v. Madison ("paramount").
Moreover, the People (in our Constitution) obviously did not vest any power in any judge or group of judges to make any law, and the People did not vest in Congress the power to give any judge or group of judges any such power (except to the extent necessary and proper to govern the operations of courts).
Article V established what powers and duties our public servants have regarding amendments to our Constitution. Article I established exactly what powers and duties the two houses of Congress and the President have to work together to make law. Article I also established exactly what powers and duties the Senate and the President have to work together to make a treaty.
Regarding your critique of the Court's treatment of inferior courts, you (because of a liberal bias?) fail to consider the liberals' stated agenda to block President Trump at every turn. I believe that if you were to objectively look at the cases that have been accepted by the Court, it is obvious that in many instances they come from "liberal" courts with flawed constitutional reasoning.
Before accusing me of "liberal bias," might I suggest that you look at the article linked to in the post, which provides copious quantitative and qualitative evidence supporting the conclusion that the volume of lower-court rulings adverse to the Trump administration *can't* be dismissed as "com[ing] from 'liberal' courts with flawed constitutional reasoning"?
Dan, I'll grant you that "flawed constitutional reasoning" is a serious problem with judges. Too often, they blatantly violate our Constitution. But that's not a partisan problem. It's an institutional problem. Too often, it's the result of ignorance or arrogance or both. Some of the most blatant lies by the current SCOTUS majority are merely reiterations of falsehoods by a prior (liberal) majority. But there's a crucial difference in the purpose of the falsehoods. The liberals tried to support our Constitution. The so-called Conservatives are trying to undermine it.
Dan, we can see in Dobbs (at least) one good example of what I addressed in my initial reply. The majority in Dobbs highlighted that the majority opinion in Roe was pathetically poorly reasoned. Even so, the majority opinion in Dobbs was far worse. It was not only pathetically poorly reasoned, it included deliberate deception about our Constitution for the precise purpose of undermining both our Constitution and our rights.
To provide one particular example, the Dobbs majority (repeatedly) quoted the Roe majority misrepresenting that the Ninth Amendment stated or constituted a “reservation of rights to the people.” In doing so, both Roe and Dobbs abused both the Ninth and Tenth Amendments.
Only the Tenth (not the Ninth) refers to a reservation of anything, but it says nothing about reserving rights. It (highly relevantly) expressly emphasized that “powers” were “reserved” to “the people.”
The Ninth neither said nor implied anything about reserving rights. It expressly commanded (especially judges) to not do what the majority in Dobbs did do. They knowingly violated our Constitution when they “construed” the “enumeration in the Constitution, of certain rights” for a prohibited purpose: “to deny or disparage [other rights that are] retained by the people.” The Ninth Amendment does not and need not reserve any rights. The People inherently and necessarily "retained" many rights that were not included in any “enumeration in the Constitution."
Both Roe and Dobbs were very poorly reasoned. Roe at least supported our rights consistent with the Constitution. The Dobbs majority knowingly violated rights that clearly are stated expressly in the Constitution. Any state legislature that pretends to have the power to compel a woman or a couple to involuntarily support one or more fetuses for months is violating a right clearly identified in the Thirteenth Amendment (the right to be free of "involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted") and a right clearly implicit in the First Amendment (the freedom of association).
Dan, we can see in Trump v. Anderson (at least) one good example of what I addressed in my initial reply. That was a per curiam (anonymous) opinion, so we don't know who was responsible for or who joined in the falsehoods it contained. But all 9 justices concurred in the judgment--based on multiple obvious falsehoods that every justice knew were false.
In Trump v. Anderson, SCOTUS justices just plain lied. They lied when they said that "federal officers" somehow '‘owe their existence and functions to the united voice of the whole, not of a portion, of the people.' Everything in our Constitution about elections or about nominations or appointments (and even about the creation of the Constitution, itself) belies that lie. Nothing in our Constitution even begins to support the justices' lie. Every voter speaks (votes) as an individual. There is no such thing as a vote by "the united voice of the whole" of "the people."
The conduct of the SCOTUS majority in Trump v. Slaughter even highlights how they lied in Trump v. Anderson. Apparently, most SCOTUS justices actually believe that virtually all the most important executive officers owe their existence and functions to only one person.
In Trump v. Anderson, SCOTUS justices also lied when they said that “powers over [federal officials'] election and qualifications must be specifically ‘delegated to, rather than reserved by, the States.’ ” They copied that obvious falsehood from U. S. Term Limits, Inc. v. Thornton in 1995.
For starters, all SCOTUS justices responsible for that falsehood abused the text of the Tenth Amendment to say exactly the opposite of what the Tenth Amendment said regarding the difference between "powers" that were "delegated" and "powers" that were "reserved." Crucially and most fundamentally, only limited "powers" were "delegated to the United States by the Constitution." The only "powers" that were "reserved" to anyone were "reserved to the States respectively, or to the people."
Copious plain text of our Constitution governing elections of federal employees plainly proves that the People in our Constitution generally reserved to state government and to the people the power to control how we vote. Such text also proves the truth of James Madison’s representation to the people in Federalist No. 45 about the design and operation of our original Constitution:
“Without the intervention of the State legislatures, the President of the United States cannot be elected at all. [State legislatures] must in all cases have a great share in [the president’s] appointment, and will, perhaps, in most cases, of themselves determine it.”
The considerable power of each state to influence the voting in each state even regarding the election of a president was illustrated in 1860 in Lincoln's first election. Out of 33 states in the Union, 10 (southern states) did not even allow Lincoln (or the Republican party) to be included on the ballot--because an insufficient number of voters supported the Republican party in those states.
Excellent analysis, Mr. Vladeck, as usual Thank you. You're a national treasure. You could include David Cole's recent essay in the NYRB, "Close Calls," 8/20/2026. Cole, a relatively progressive voice, makes the very mistakes you reveal here. Cole wants to defend a distinction between this Court as Trump lap dogs, on one hand, and just good old conservative justice pursuing their own ideological or institutional values, on the other. He argues for the latter view. Legalists will always think about real-world consequences last, if at all. They often have a personal stake in "judicial independence." A good analysis of why the Court behaves the way it does now (doing pretty much what it wants, precedent or purported theoretical/jurisprudential commitments be damned) is Kevin J. McMahon's recent book, "A Supreme Court Unlike Any Other: The Deepening Divide Between the Justice and the People." Univ. of Chicago Press, 2024. https://press.uchicago.edu/ucp/books/book/chicago/S/bo211872635.html Caveat emptor: McMahon is a friend of mine. Here is a link to a roundtable on the book that I chaired at the 2025 Annual Meeting of the Law and Society Association (junky recording, but audible): https://www.youtube.com/watch?v=MpB1kcWlE7Y
This is, by instinctive inclination, an authoritarian "court." The mistake is to see it as bowing to an external authority, i.e., the MAGA fuhrer. That understates the majority's arrogance. It perceives itself as the center of authoritarian power. It is indeed independent, in that it recognizes no external authority, neither Constitution, established law, custom, rules of judicial procedure and conduct, any other branch of government, nor vox populi. The reason it sides with the Trump regime so often is that birds of a feather flock together; that is, not through deference to the executive, but through spiritual kinship with the incumbent.
But "independent" clearly cannot mean that any group of judges (even a vast majority) simply "recognizes no external authority, neither Constitution, established law, custom, rules of judicial procedure and conduct."
Two specific criminal statutes were enacted to prevent and punish the very kind of misconduct in which some SCOTUS justices (or other judges) have engage in some instances.
It is a federal offense for any judge to act “under” mere “color of any” legal authority or judicial “custom” to “willfully” deprive "any person" of "any rights, privileges, or immunities secured or protected by the Constitution” or federal “laws” (18 U.S.C. § 242) or to “conspire” with anyone (including other judges) to “injure, oppress, threaten, or intimidate any person" in "the free exercise or enjoyment of any right or privilege secured to” him “by the Constitution” or federal “laws” or because such person “exercised” such “right or privilege” (18 U.S.C. § 241).
Sections 241 and 242 are “plain and unlimited;” their text “embraces all of the rights and privileges secured” by “all of the Constitution and all” federal “laws.” United States v. Price, 383 U.S. 787, 800 (1966). The “qualification” in Section 242 regarding “alienage, color and race” does not apply “to deprivations of any rights or privileges.” United States v. Classic, 313 U.S. 299, 326 (1941).
No one is “above the law.” Trump v. United States, 603 U.S. 593, 640 (2024). No one “charged with enforcing federal criminal laws” is “above them.” Id. at 614. “Even judges” clearly “can be punished criminally” under 18 U.S.C. 241 or 242 “for willful deprivations of constitutional rights.” Imbler v. Pachtman, 424 U.S. 409, 429 (1976). Accord Dennis v. Sparks, 449 U.S. 24, 28, n.5 (1980); Briscoe v. Lahue, 460 U.S. 325, 345, n.32 (1983); Ex parte Virginia, 100 U.S. 339 (1880) (criminal prosecution of judge for official acts).
It appears that the current court considers “Independence” to mean “un-moored from law, precedent, and where necessary, the Constitution so that we might rule in the manner we prefer.”
"Regardless of how you slice the data, there’s a deeper problem with the way folks are arguing about this: they’ve turned judicial independence into the benchmark, when it never has been, and isn’t supposed to be, the reason for having an independent judiciary. Independence is instrumental. It matters because of what it produces—a judiciary free to rest its rulings on law rather than on the identity or the preferences of the party in front of it or the threats the judges face if they rule the “wrong” way. Alexander Hamilton’s point in Federalist No. 78 was not that independence is intrinsically valuable but that the judiciary, holding “neither force nor will, but merely judgment,” would need something other than force or will to make its judgments stick "
Some conservative justices may know the law, but they often seem to honor it more in the breach than in the observance.
In spite of their alleged desire to view interpretation through a historical lens, they seem to have very little respect for the legal precedents that prior Courts have created to guide them.
Sometimes they veer dangerously close, instead, to justifying their rulings by simply stating "what I say goes." That's not originalism. That's kindergarten.
Originalism is a rhreadbare legal philosophy. It is a truism that legal interpretation should be informed by an understanding of intent. The word "original" adds nothing to this truism, as it is implicit that the search is for the maker's intent, not that of someone else. This being so the doctrine of "original intent" as it applies to constitutional interpretation simply boils down to the assertion "Inow better than you".
It's more of a truism to say that legal interpretation should be informed by an understanding of intent when the intent matches one's preferred outcome, otherwise intent is irrelevant. I think that's something both sides can agree on :--)
Ilya Somin wrote on this about a week ago at the Unpopulist arguing the same premise that you've seen others say: "This court stands up to Trump." A different axis explains the Court's rulings better: whether the ruling constrains concentrated economic power or expands it.
The major questions doctrine has spent the years since West Virginia v. EPA narrowing agency power to control industry: emissions standards, student debt relief, and workplace rules. Citizens United and the later campaign finance cases protect the speech of capital. Trump v. Slaughter, with the Cook carveout, tells you which institutions this Court treats as too economically consequential for presidential control, and which ones (labor boards and consumer agencies) it doesn't.
Even the tariff case, the marquee example of the Court checking Trump, is a win for importers facing a tax, not an expansion of any citizen's power over the executive. I'm not sure telling Congress they cannot pass laws to protect citizens from the excesses of big business can really be counted as democracy's save.
So the case-by-case record against Trump holds up fine on its own terms. But add up which interests keep winning regardless of administration, and the throughline isn't a check on authoritarianism so much as a check on regulatory reach into capital, paired with an expansion of capital's voice in politics. That's a bend toward concentrated economic power, not toward the citizens of this country.
Speaking of tariffs, the CEO of Learning Resources, one of the lead plaintiffs in the lawsuit against the tariffs, originally pointed out that he was raising prices 70% -- "I'm just raising money to you to pay them [the government's new tariffs]." (1)
Recently, an interviewer asked him if some of the money the company gets back ($10 million so far) would go to the customers, in some way, shape, or form, who have already paid higher prices for some of the company's products (2). His answer made it clear that they don't intend to refund customers (they'll be expanding production, which creates new jobs, etc.).
I suspect that that will be typical -- the customers paid the tariffs and the businesses get the refunds.
I think defenders also missed a big problem, and I don't know if you spotted it. If "independence" is the goal for the defenders, don't they implicitly admit that the Court is a political actor and its "independence" as a goal is to remove the *perception* of its status as a political actor and the expectation that it will generally act in concert with political leadership within political parties?
"Independence" then becomes the currency that the Court spends when it takes sides in political disputes, and how much it spends will vary by how much of a side it takes, in which circumstances, and how on the scale it wants to lean. All of which says that the Court essentially has no income of its own but can amass a large bank account of trust to spend.
This didn't come out as cleanly as I wanted but it feels like the Court's current defenders are missing a half-step somewhere in here.
You seem to say that this "Independent Court" nonsense comes only from Republicans. However, Justice Kagan famously made it in a public speech on July 14, 2026. Soon after, the same argument appeared in several Democratic Party publications and seems to be an emerging Party consensus. See, for example, David Cole, “Close Calls,” in The New York Review of Books (August 2, 2026). The Democrats, after the fall of Trump, soon will have a rare, perhaps unique, opportunity to retrieve the Constitution by reforming the Court and reigning it in. Instead, their use of the "Independent Court" nonsense seems to indicate that that they are planning to leave the Court untouched and wait and hope to appoint Democrat justices to an unreformed Court.
This reminds me of the kid who has an 8-page list of presents he wants for Christmas, the last three of which are a sportscar, his own apartment, and a yacht, and then when his parents get him everything on the list other than the last three, they congratulate themselves on being parsimonious with him.
I think it was in the Washington Post last year they wrote about Trump’s defiance in approximately 35% of the court decisions that were ignored/defied by the trump admin. That is a huge number and is disconcerting to see this degree of lawlessness coming from him. I think eventually we will all pay a price for his crimes against us as a people and against the constitution.
Thank you for this
I would add to the reasoning that the Trump administration has been testing the legal envelope in nearly every way imaginable in its second term, and so its losing in three of the most truly outrageous examples of that testing may simply mean that it was thereby able to bolster the illusion that the Court was actually reining it in, when it never should have had any chance of winning any of those three cases (leaving aside the fourth, interim docket case)
As Professor Vladeck noted, some of the best writing about the role of courts under our Constitution is in Federalist No. 78. It was written to explain why Americans should support ratification of the Constitution. It explains what the people established as the law by ratifying the Constitution. It was the foundation for (and even was repeated in) much of the best analysis in Marbury v. Madison about the constant duty of judges to fulfill their oaths to support the Constitution.
Independence means that "judges [actually] do their duty as faithful guardians of the Constitution." The "necessary independence" of judges means their "inflexible and uniform adherence to the rights of the Constitution, and of individuals, which we perceive to be indispensable in the courts of justice." "It can be of no weight to say that the courts, on the pretense of a [law's] repugnancy [to the Constitution], may substitute their own pleasure to the constitutional intentions of the legislature" (or the Constitution of the People). "To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents."
"This independence of the judges is equally requisite to guard the Constitution and the rights of individuals from the effects of those ill humors, which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves, and which, though they speedily give place to better information, and more deliberate reflection, have a tendency, in the meantime, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community."
"A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore" is the duty of judges "to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people [in the Constitution] to the intention of their agents" [in any level or branch of government]. "Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people [under to the Constitution] is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental."
The People in Article III of our Constitution established that federal "judicial Power shall extend" no further than determining and explaining how "this Constitution, the Laws of the United States, and Treaties" govern the fact and circumstances of particular "Cases" or "Controversies." That is the substance of the duty of "judicial Officers" to "support this Constitution" as the paramount part of "the supreme Law of the Land," as Article VI emphasizes. That's why federal law (5 U.S.C. 3331) requires every judge to expressly acknowledge that every judge's foremost and constant duty is to "support and defend the Constitution of the United States against all enemies, foreign and domestic" (regardless of their position or party) and to "bear true faith and allegiance to the [Constitution]," not any person or party.
Hi, Professor Vladeck. If not already on your radar and if possible, could you please cover the following case dealing with an APA vacatur from the Northern District of Texas vacating the 2024 EOIR final rule, “Efficient Case and Docket Management in Immigration Proceedings.” (Giving IJs authority to admin close)?
https://storage.courtlistener.com/recap/gov.uscourts.txnd.421878/gov.uscourts.txnd.421878.5.0.pdf
As an immigration attorney (WCL grad), I am especially troubled by this development. I am striving to understand premption and consent decrees but would greatly appreciate your insight. I truly hope it's not this easy to run around regulations and avoid the rules making process.
Thank you for your substack, I truly enjoy it!
If a majority (or supermajority) of the Justices have a jurisprudential ideology that aligns with the arguments that might overturn precedents they do not agree with and bring about these changes with alacrity that might be at odds with historical procedure, are they not "independent"? It is judge made law, but there is independence in that. The failure lies with a breakdown of checks and balances, principally from the Congress, a situation which the Court helped to create.
As the text of our Constitution established (and as Hamilton in Federalist No. 78 and SCOTUS in Marbury v. Madison re-emphasized) there is no such thing as "judge made law" (except to the extent that judges write rules that govern courts and the conduct of judges and other participants in litigation). The constitutional role of judges is not to make law. The duty of judges is to interpret, construe and apply, first, the Constitution, and second, subordinate parts of the supreme law of the land.
Every legitimate jurisprudential ideology or doctrine is (and must remain) subordinate to the Constitution and serve to fulfill judges' oaths to support the Constitution. As SCOTUS explained in Marbury v. Madison, any contrary "doctrine would subvert the very foundation of all written constitutions. It would declare that an act, which, according to the principles and theory of our government, is entirely void; is yet, in practice, completely obligatory. It would declare, that if" a public servant does "what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual. It would be giving to" such purported public servant "a practical and real omnipotence, with the same breath which professes to restrict their powers within narrow limits. It is prescribing limits, and declaring that those limits may be passed as pleasure."
I have never understood people who make this argument. Judges make law all the time in a common law system. They also make law when they interpret statutes and constitutional provisions. As Holmes (a better legal theorist than Hamilton) said, the law is not a brooding omnipresence in the sky. It's the product of iterative judicial craft.
Basically almost all law in areas where cases are justiciable is judge made.
Dilan, it's a falsehood to say that we have a common law system. Britain had a common law system--a system in which judges actually did make the law. But those judges made law as representatives of the crown, not as an independent branch of government. Judges were known as "lions under the throne" because they were part of the executive branch, and they supported the executive in enforcing the law.
After the U.S. declared independence from Britain, Americans continued to rely on the common law, but only as a matter of necessity. It takes a lot of time to write all the laws that are "necessary and proper." But the People in Article I established and emphasized that "All legislative Powers herein granted" were "vested" exclusively in "Congress," and those powers were defined to mean the power to "make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers [of Congress], and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof," (i.e., in the executive or judicial branches or officers).
Congress has all the power to make all the laws. That's why the People emphasized in Article II that the President's duty is to "take Care that the Laws be faithfully executed" (and otherwise to take any actions that are necessary and proper to "preserve, protect and defend the Constitution").
It's also a falsehood to say that judges "make law when they interpret statutes and constitutional provisions." Alexander Hamilton in Federalist No. 78 (which I quoted above) and Chief Justice Marshall in Marbury v. Madison emphasized this principle repeatedly.
The People in Article III of our Constitution established that federal "judicial Power shall extend" no further than determining and explaining how "this Constitution, the Laws of the United States, and Treaties" govern the fact and circumstances of particular "Cases" or "Controversies." That is the substance of the duty of "judicial Officers" to "support this Constitution" as the paramount part of "the supreme Law of the Land," as Article VI emphasizes. That's why federal law (5 U.S.C. 3331) requires every judge to expressly acknowledge that every judge's foremost and constant duty is to "support and defend the Constitution of the United States against all enemies, foreign and domestic" (regardless of their position or party) and to "bear true faith and allegiance to the [Constitution]," not any person or party.
Jack, with due respect, it would easier to follow you if you distilled your thoughts into a single post of a few paragraphs.
From my layman's point of view, there may be a difference of definitions here.
If "make the law" means making it up out of whole cloth, or patently subverting the Constitution, then of course judges should not "make the law". But if "make the law" means doing textual analysis, probing original intent, etc., in order to resolve ambiguities in a statute or the Constitution (e.g., what exactly does "liberty" encompass?), then judges necessarily "make the law". After all, someone has to resolve such disputes, and that's what courts are for.
John, I heartily wish a few paragraphs would suffice. But even many paragraphs seem not to suffice.
As SCOTUS has emphasized repeatedly, we must start with the text of the Constitution. The words "make" and "law" repeatedly are used in conjunction in the Constitution. Search on-line in the Constitution for the words "make" or "court" or "judicial" and see if you can find anything that supports your assumption that "make the law" might mean "doing textual analysis, probing original intent, etc., in order to resolve ambiguities in a statute or the Constitution."
Our state and federal constitutions emphasize that legislatures make law, executives execute the law, and judges decide (and explain) how particular cases or controversies are governed by the law that already exists. Judges don't have any power to in any way "make" anything that legitimately can be labeled "law" (except maybe to the extent necessary and proper to make rules that govern the operation of courts).
Many SCOTUS opinions (and even common sense and dictionaries) establish that judges have no power to "make" law. Only people who don't understand the crucial horizontal divisions of power in our Constitution (or who seek to deceive or who are demonstrating reckless disregard for the truth) would even attempt to persuade anyone that American judges were given some general power to "make law."
Please consider (again) what Scalia highlighted about the separation of powers and about Federalist No. 47. Many powers were divided as they were in our Constitution (horizontally and vertically) to protect the People from tyranny (by factions of purported public servants and even by factions of other parts of society).
Consider more of what James Madison included in Federalist No. 47 (because it was common knowledge in the 1770's and 1780's):
"[T]he preservation of liberty requires that the three great departments of power should be separate and distinct. The oracle who is always consulted and cited on this subject is the celebrated Montesquieu."
Montesquieu was celebrated for emphasizing the following.
"The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many" (no matter how they are given or usurp such power) is "the very definition of tyranny."
Moreover, "[t]here can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates," or "if the power of judging be not separated from the legislative and executive powers."
"When the legislative and executive powers are united in the same person or body," says he, "there can be no liberty, because" then "THE SAME monarch or senate" could "ENACT tyrannical laws" and "EXECUTE them in a tyrannical manner. "
"Were the power of judging joined with the legislative, the life and liberty of [people] would be exposed to arbitrary control, for THE JUDGE would then be THE LEGISLATOR. Were it joined to the executive power, THE JUDGE might behave with all the violence of AN OPPRESSOR."
John, consider a couple crucial self-evident truths that many fail to see.
The reason the First Amendment says that "Congress shall make no law . . ." is that Article I emphasized and established that the People vested in our ELECTED representatives in Congress, alone, the power "To make all Laws" that turn out to "be necessary and proper for carrying into Execution" absolutely all the "Powers vested by this Constitution" in any part of the national government. When our elected representatives in Congress lack the power to make a law, no other part of the national government could possibly have such power.
Our elected representatives have the power to "make all Laws" that turn out to "be necessary and proper for carrying into Execution" absolutely all the "Powers vested by this Constitution" in any part of the national government. Crucially, however, the People reserved to ourselves the power to remove the entire House of Representatives and 1/3 of the Senate every 2 years.
In addition, nothing in Article III even indicates that the People vested any power in unelected judges to even so much as make rules governing the operation of courts. Instead, the People in Article I expressly and clearly vested in Congress, alone, the power to "make all Laws" that turn out to "be necessary and proper for carrying into Execution" all federal judicial powers.
Jack: This is in response to both your replies to me.
Your comments seem to use "make law" in the first sense I described, and in that sense I don't dispute anything you wrote.
Suppose a state law prohibits some action (use of contraception, same-sex marriage, abortion, etc.), and suppose that some people object that the law violates their constitutional rights. The case makes its way to the U.S. Supreme Court, which has to determine if the law is consistent with the Constitution. Suppose the Court decides that the law violates the Constitution. This often involves resolving ambiguities in the Constitution (e.g., what is the scope of "liberty"?).
In practice, the Court's interpretation has changed the legal rules that apply. Before, people could not (legally) engage in the given action (in the state(s) in question), now they can. Some people might say that the Court "made law", though not in the same sense as Congress "makes laws".
Do you only object to the use of the phrase "make law" in such a case? If that's your only objection, then you might consider accepting that some people use words differently than you, and as long as you understand what they mean, you can avoid talking at cross-purposes.
If you object to something more substantial than phrasing, perhaps you can use my example to clarify what you object to.
Dilan, I like to quote Justice Scalia sometimes, in part, because he often spoke the truth, and in part, because other people like to rely on Justice Scalia to pretend to justify egregiously unconstitutional executive powers. Regarding the rule of law, and separation of powers, Justice Scalia put it pretty well in 1988 in his (famous) dissenting opinion in Morrison v. Olson (echoing James Madison in 1788). The following is as relevant to the subordinate role of the judiciary as it is to the subordinate role of the executive (subordinate to our Constitution, which expressly makes the other two branches subordinate to laws enacted by Congress):
"That is what this suit is about. Power. The allocation of power [ ] in such fashion as to preserve the equilibrium [that the People by] the Constitution sought to establish—so that 'a gradual concentration of [ ] powers' [Federalist No. 51 (J. Madison)] can effectively be resisted."
"It is the proud boast of our democracy that we have 'a government of laws and not of men.' " That comes from the Massachusetts Constitution of 1780 regarding the separation of powers between legislative, executive and judicial departments. "The Framers of the Federal Constitution similarly viewed the principle of separation of powers as the absolutely central guarantee of a just Government. In No. 47 of The Federalist, Madison wrote that “[n]o political truth is certainly of greater intrinsic value, or is stamped with the authority of more enlightened patrons of liberty.” Justice Scalia emphasized, "Without a secure structure of separated powers, our Bill of Rights would be worthless."
Justice Scalia also highlighted that in Federalist No. 51 Madison emphasized the following crucial and dispositive truth about our Constitution and how the People chose to vest less power in the Executive and Judicial branches than in the Legislative branch: “it is not [even] possible to give to each department an equal power[. Moreover, i]n republican government, the legislative authority necessarily predominates.”
Incidentally, Justice Holmes took a long time to catch up to Hamilton regarding our freedom of expression and communication. Before Holmes became a SCOTUS justice, he was a powerful opponent of our freedom of expression. That famously changed after Holmes became a SCOTUS justice.
But even as an attorney, Hamilton was crucial in helping establish the nature of our freedom of expression and communication. In 1802, Hamilton represented Croswell in People v. Croswell. That was a landmark New York case establishing not only that truth is a defense in libel, but (far more importantly) anyone seeking to punish or penalize any criticism must prove how it was false. So people cannot be punished or penalized for criticism of our public servants--even the president--without proof of how the criticism was false. (Croswell was being prosecuted in New York for having criticized President Thomas Jefferson). SCOTUS finally started to emphasize those same principles in 1964 in New York Times Co. v. Sullivan and Garrison v. Louisiana.
Dilan, are you sure about your assertion that Holmes was a better legal theorist than Hamilton? Hamilton devoted very much of his adult life to asserting and defending constitutional principles--the same principles that were written into the Constitution that he helped write and which he helped even more to have ratified (including by writing most of the 85 Federalist Papers).
Washington praised and recommended publications such as the Federalist Papers because they "have thrown new lights upon the science of Government, they have given the rights of man a full and fair discussion, and have explained them in so clear and forcible a manner as cannot fail to make a lasting impression upon those who read the best publications of the subject, and particularly the pieces under the signature of Publius," (i.e., The Federalist Papers). After the Constitution was ratified and Washington was chosen as the first president, Washington chose Hamilton to be one of his closest advisors (Secretary of the Treasury) to implement the new Constitution.
As a lawyer, Hamilton asserted constitutional principles, e.g., regarding the freedom of expression and communication that (about 150 years later) were finally included in SCOTUS opinions. And to this day, SCOTUS justices commonly look to the Federalist Papers to try to better understand or better explain the text and purpose of the Constitution.
Dilan, in Marbury v. Madison, SCOTUS emphasized that "It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each."
The second and third sentences explained the limits of the power "to say what the law is." Obviously, saying that "the province and duty of the judicial department" is "to say what the law is" does not mean that judges have the power to make law. The People in our Constitution (Article I) emphatically established that the power to "make all laws" that are "necessary and proper" for national government was vested exclusively in "Congress." But, as Article I also emphasized in its first words, even the power of Congress to make law was explicitly limited. Only the limited "legislative Powers herein granted shall be vested in a Congress."
Judges definitely and clearly don't have (and not even Congress can give them) the power to change our Constitution or make law in violation of our Constitution. As our first words as one people declared and established, "the People of the United States" acted as the supreme (and the only) legislative body for our new nation as of June 21, 1788 to "ordain and establish this Constitution for the United States of America." As Article VII established and emphasized, "the Establishment of this Constitution" was accomplished by specially conducted "Conventions" of the People "ratifying the Same."
As Article VI established and emphasized, the People established that our "Constitution, and [only] the Laws of the United States which shall be made in Pursuance thereof" (i.e., only laws that are "necessary and proper") "and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land." That obviously means that our Constitution is the paramount part of the supreme law of the land (as SCOTUS repeatedly emphasized in Marbury v. Madison ("paramount").
Moreover, the People (in our Constitution) obviously did not vest any power in any judge or group of judges to make any law, and the People did not vest in Congress the power to give any judge or group of judges any such power (except to the extent necessary and proper to govern the operations of courts).
Article V established what powers and duties our public servants have regarding amendments to our Constitution. Article I established exactly what powers and duties the two houses of Congress and the President have to work together to make law. Article I also established exactly what powers and duties the Senate and the President have to work together to make a treaty.
Regarding your critique of the Court's treatment of inferior courts, you (because of a liberal bias?) fail to consider the liberals' stated agenda to block President Trump at every turn. I believe that if you were to objectively look at the cases that have been accepted by the Court, it is obvious that in many instances they come from "liberal" courts with flawed constitutional reasoning.
Before accusing me of "liberal bias," might I suggest that you look at the article linked to in the post, which provides copious quantitative and qualitative evidence supporting the conclusion that the volume of lower-court rulings adverse to the Trump administration *can't* be dismissed as "com[ing] from 'liberal' courts with flawed constitutional reasoning"?
Here's the link again: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=7123578
I'm all ears if you have responses to that evidence, as opposed to your (unsubstantiated) assertion that "it is obvious."
Dan, I'll grant you that "flawed constitutional reasoning" is a serious problem with judges. Too often, they blatantly violate our Constitution. But that's not a partisan problem. It's an institutional problem. Too often, it's the result of ignorance or arrogance or both. Some of the most blatant lies by the current SCOTUS majority are merely reiterations of falsehoods by a prior (liberal) majority. But there's a crucial difference in the purpose of the falsehoods. The liberals tried to support our Constitution. The so-called Conservatives are trying to undermine it.
Dan, we can see in Dobbs (at least) one good example of what I addressed in my initial reply. The majority in Dobbs highlighted that the majority opinion in Roe was pathetically poorly reasoned. Even so, the majority opinion in Dobbs was far worse. It was not only pathetically poorly reasoned, it included deliberate deception about our Constitution for the precise purpose of undermining both our Constitution and our rights.
To provide one particular example, the Dobbs majority (repeatedly) quoted the Roe majority misrepresenting that the Ninth Amendment stated or constituted a “reservation of rights to the people.” In doing so, both Roe and Dobbs abused both the Ninth and Tenth Amendments.
Only the Tenth (not the Ninth) refers to a reservation of anything, but it says nothing about reserving rights. It (highly relevantly) expressly emphasized that “powers” were “reserved” to “the people.”
The Ninth neither said nor implied anything about reserving rights. It expressly commanded (especially judges) to not do what the majority in Dobbs did do. They knowingly violated our Constitution when they “construed” the “enumeration in the Constitution, of certain rights” for a prohibited purpose: “to deny or disparage [other rights that are] retained by the people.” The Ninth Amendment does not and need not reserve any rights. The People inherently and necessarily "retained" many rights that were not included in any “enumeration in the Constitution."
Both Roe and Dobbs were very poorly reasoned. Roe at least supported our rights consistent with the Constitution. The Dobbs majority knowingly violated rights that clearly are stated expressly in the Constitution. Any state legislature that pretends to have the power to compel a woman or a couple to involuntarily support one or more fetuses for months is violating a right clearly identified in the Thirteenth Amendment (the right to be free of "involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted") and a right clearly implicit in the First Amendment (the freedom of association).
Dan, we can see in Trump v. Anderson (at least) one good example of what I addressed in my initial reply. That was a per curiam (anonymous) opinion, so we don't know who was responsible for or who joined in the falsehoods it contained. But all 9 justices concurred in the judgment--based on multiple obvious falsehoods that every justice knew were false.
In Trump v. Anderson, SCOTUS justices just plain lied. They lied when they said that "federal officers" somehow '‘owe their existence and functions to the united voice of the whole, not of a portion, of the people.' Everything in our Constitution about elections or about nominations or appointments (and even about the creation of the Constitution, itself) belies that lie. Nothing in our Constitution even begins to support the justices' lie. Every voter speaks (votes) as an individual. There is no such thing as a vote by "the united voice of the whole" of "the people."
The conduct of the SCOTUS majority in Trump v. Slaughter even highlights how they lied in Trump v. Anderson. Apparently, most SCOTUS justices actually believe that virtually all the most important executive officers owe their existence and functions to only one person.
In Trump v. Anderson, SCOTUS justices also lied when they said that “powers over [federal officials'] election and qualifications must be specifically ‘delegated to, rather than reserved by, the States.’ ” They copied that obvious falsehood from U. S. Term Limits, Inc. v. Thornton in 1995.
For starters, all SCOTUS justices responsible for that falsehood abused the text of the Tenth Amendment to say exactly the opposite of what the Tenth Amendment said regarding the difference between "powers" that were "delegated" and "powers" that were "reserved." Crucially and most fundamentally, only limited "powers" were "delegated to the United States by the Constitution." The only "powers" that were "reserved" to anyone were "reserved to the States respectively, or to the people."
Copious plain text of our Constitution governing elections of federal employees plainly proves that the People in our Constitution generally reserved to state government and to the people the power to control how we vote. Such text also proves the truth of James Madison’s representation to the people in Federalist No. 45 about the design and operation of our original Constitution:
“Without the intervention of the State legislatures, the President of the United States cannot be elected at all. [State legislatures] must in all cases have a great share in [the president’s] appointment, and will, perhaps, in most cases, of themselves determine it.”
The considerable power of each state to influence the voting in each state even regarding the election of a president was illustrated in 1860 in Lincoln's first election. Out of 33 states in the Union, 10 (southern states) did not even allow Lincoln (or the Republican party) to be included on the ballot--because an insufficient number of voters supported the Republican party in those states.
Excellent analysis, Mr. Vladeck, as usual Thank you. You're a national treasure. You could include David Cole's recent essay in the NYRB, "Close Calls," 8/20/2026. Cole, a relatively progressive voice, makes the very mistakes you reveal here. Cole wants to defend a distinction between this Court as Trump lap dogs, on one hand, and just good old conservative justice pursuing their own ideological or institutional values, on the other. He argues for the latter view. Legalists will always think about real-world consequences last, if at all. They often have a personal stake in "judicial independence." A good analysis of why the Court behaves the way it does now (doing pretty much what it wants, precedent or purported theoretical/jurisprudential commitments be damned) is Kevin J. McMahon's recent book, "A Supreme Court Unlike Any Other: The Deepening Divide Between the Justice and the People." Univ. of Chicago Press, 2024. https://press.uchicago.edu/ucp/books/book/chicago/S/bo211872635.html Caveat emptor: McMahon is a friend of mine. Here is a link to a roundtable on the book that I chaired at the 2025 Annual Meeting of the Law and Society Association (junky recording, but audible): https://www.youtube.com/watch?v=MpB1kcWlE7Y
This is, by instinctive inclination, an authoritarian "court." The mistake is to see it as bowing to an external authority, i.e., the MAGA fuhrer. That understates the majority's arrogance. It perceives itself as the center of authoritarian power. It is indeed independent, in that it recognizes no external authority, neither Constitution, established law, custom, rules of judicial procedure and conduct, any other branch of government, nor vox populi. The reason it sides with the Trump regime so often is that birds of a feather flock together; that is, not through deference to the executive, but through spiritual kinship with the incumbent.
But "independent" clearly cannot mean that any group of judges (even a vast majority) simply "recognizes no external authority, neither Constitution, established law, custom, rules of judicial procedure and conduct."
Two specific criminal statutes were enacted to prevent and punish the very kind of misconduct in which some SCOTUS justices (or other judges) have engage in some instances.
It is a federal offense for any judge to act “under” mere “color of any” legal authority or judicial “custom” to “willfully” deprive "any person" of "any rights, privileges, or immunities secured or protected by the Constitution” or federal “laws” (18 U.S.C. § 242) or to “conspire” with anyone (including other judges) to “injure, oppress, threaten, or intimidate any person" in "the free exercise or enjoyment of any right or privilege secured to” him “by the Constitution” or federal “laws” or because such person “exercised” such “right or privilege” (18 U.S.C. § 241).
Sections 241 and 242 are “plain and unlimited;” their text “embraces all of the rights and privileges secured” by “all of the Constitution and all” federal “laws.” United States v. Price, 383 U.S. 787, 800 (1966). The “qualification” in Section 242 regarding “alienage, color and race” does not apply “to deprivations of any rights or privileges.” United States v. Classic, 313 U.S. 299, 326 (1941).
No one is “above the law.” Trump v. United States, 603 U.S. 593, 640 (2024). No one “charged with enforcing federal criminal laws” is “above them.” Id. at 614. “Even judges” clearly “can be punished criminally” under 18 U.S.C. 241 or 242 “for willful deprivations of constitutional rights.” Imbler v. Pachtman, 424 U.S. 409, 429 (1976). Accord Dennis v. Sparks, 449 U.S. 24, 28, n.5 (1980); Briscoe v. Lahue, 460 U.S. 325, 345, n.32 (1983); Ex parte Virginia, 100 U.S. 339 (1880) (criminal prosecution of judge for official acts).
It appears that the current court considers “Independence” to mean “un-moored from law, precedent, and where necessary, the Constitution so that we might rule in the manner we prefer.”
"Regardless of how you slice the data, there’s a deeper problem with the way folks are arguing about this: they’ve turned judicial independence into the benchmark, when it never has been, and isn’t supposed to be, the reason for having an independent judiciary. Independence is instrumental. It matters because of what it produces—a judiciary free to rest its rulings on law rather than on the identity or the preferences of the party in front of it or the threats the judges face if they rule the “wrong” way. Alexander Hamilton’s point in Federalist No. 78 was not that independence is intrinsically valuable but that the judiciary, holding “neither force nor will, but merely judgment,” would need something other than force or will to make its judgments stick "
Some conservative justices may know the law, but they often seem to honor it more in the breach than in the observance.
In spite of their alleged desire to view interpretation through a historical lens, they seem to have very little respect for the legal precedents that prior Courts have created to guide them.
Sometimes they veer dangerously close, instead, to justifying their rulings by simply stating "what I say goes." That's not originalism. That's kindergarten.
Originalism is a rhreadbare legal philosophy. It is a truism that legal interpretation should be informed by an understanding of intent. The word "original" adds nothing to this truism, as it is implicit that the search is for the maker's intent, not that of someone else. This being so the doctrine of "original intent" as it applies to constitutional interpretation simply boils down to the assertion "Inow better than you".
It's more of a truism to say that legal interpretation should be informed by an understanding of intent when the intent matches one's preferred outcome, otherwise intent is irrelevant. I think that's something both sides can agree on :--)
Ilya Somin wrote on this about a week ago at the Unpopulist arguing the same premise that you've seen others say: "This court stands up to Trump." A different axis explains the Court's rulings better: whether the ruling constrains concentrated economic power or expands it.
The major questions doctrine has spent the years since West Virginia v. EPA narrowing agency power to control industry: emissions standards, student debt relief, and workplace rules. Citizens United and the later campaign finance cases protect the speech of capital. Trump v. Slaughter, with the Cook carveout, tells you which institutions this Court treats as too economically consequential for presidential control, and which ones (labor boards and consumer agencies) it doesn't.
Even the tariff case, the marquee example of the Court checking Trump, is a win for importers facing a tax, not an expansion of any citizen's power over the executive. I'm not sure telling Congress they cannot pass laws to protect citizens from the excesses of big business can really be counted as democracy's save.
So the case-by-case record against Trump holds up fine on its own terms. But add up which interests keep winning regardless of administration, and the throughline isn't a check on authoritarianism so much as a check on regulatory reach into capital, paired with an expansion of capital's voice in politics. That's a bend toward concentrated economic power, not toward the citizens of this country.
Speaking of tariffs, the CEO of Learning Resources, one of the lead plaintiffs in the lawsuit against the tariffs, originally pointed out that he was raising prices 70% -- "I'm just raising money to you to pay them [the government's new tariffs]." (1)
Recently, an interviewer asked him if some of the money the company gets back ($10 million so far) would go to the customers, in some way, shape, or form, who have already paid higher prices for some of the company's products (2). His answer made it clear that they don't intend to refund customers (they'll be expanding production, which creates new jobs, etc.).
I suspect that that will be typical -- the customers paid the tariffs and the businesses get the refunds.
[1] https://www.youtube.com/watch?v=G6WRcprTNgM&t=128s
[2] https://youtu.be/CNgpv-QnWnI?t=238
I think defenders also missed a big problem, and I don't know if you spotted it. If "independence" is the goal for the defenders, don't they implicitly admit that the Court is a political actor and its "independence" as a goal is to remove the *perception* of its status as a political actor and the expectation that it will generally act in concert with political leadership within political parties?
"Independence" then becomes the currency that the Court spends when it takes sides in political disputes, and how much it spends will vary by how much of a side it takes, in which circumstances, and how on the scale it wants to lean. All of which says that the Court essentially has no income of its own but can amass a large bank account of trust to spend.
This didn't come out as cleanly as I wanted but it feels like the Court's current defenders are missing a half-step somewhere in here.
You seem to say that this "Independent Court" nonsense comes only from Republicans. However, Justice Kagan famously made it in a public speech on July 14, 2026. Soon after, the same argument appeared in several Democratic Party publications and seems to be an emerging Party consensus. See, for example, David Cole, “Close Calls,” in The New York Review of Books (August 2, 2026). The Democrats, after the fall of Trump, soon will have a rare, perhaps unique, opportunity to retrieve the Constitution by reforming the Court and reigning it in. Instead, their use of the "Independent Court" nonsense seems to indicate that that they are planning to leave the Court untouched and wait and hope to appoint Democrat justices to an unreformed Court.
Attempts to exculpate this court are as disingenuous and illusory as this court’s attempts to contort the law for a man eager to abolish it entirely.
This reminds me of the kid who has an 8-page list of presents he wants for Christmas, the last three of which are a sportscar, his own apartment, and a yacht, and then when his parents get him everything on the list other than the last three, they congratulate themselves on being parsimonious with him.
Except that Justice Thomas got the sports car.
I think it was in the Washington Post last year they wrote about Trump’s defiance in approximately 35% of the court decisions that were ignored/defied by the trump admin. That is a huge number and is disconcerting to see this degree of lawlessness coming from him. I think eventually we will all pay a price for his crimes against us as a people and against the constitution.