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 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 repugnancy [to the Constitution], may substitute their own pleasure to the constitutional intentions of the legislature." "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.
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"?
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
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 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 repugnancy [to the Constitution], may substitute their own pleasure to the constitutional intentions of the legislature." "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.
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."
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