John Roberts is in a similar position to Owen Roberts in December 1936. Whether he’ll react the same way could say a lot about the Supreme Court’s future.
Great piece Steve! Thanks for you brilliant break down on what SCOTUS should be and will be thinking about. Sounds like a lot of justice might be ahead.
I hope you're right and the Court moderates and stops rulings that are contrary to the law and Constitution. A further check on Alito or Thomas retiring may be fear a Trump appointee would not pass the Senate, although I suppose they could retire effective upon a successor being approved. Would Collins or the like want to further tarnish her legacy for voting during a lame duck session?
OTOH, I worry that the Court may double down on its assault on voting rights and, should the Democrats pass court reform, rule it unconstitutional (no matter how obviously it isn't), setting up a mess.
The chance of the "good behavior" clause being tested is now close to zero. Will the chilling effect now gone will appeasement change? Poss new majorities Gorsuch, Kagan, Barrett, Soto, Jackson with CJ swinging in selectively, & opportunistic Kav toning down unitary Pres in advance of 28. Sec of State elections only had 2 flips which is important for 28 election but not the wave as much in the weeds. Citizens United revisited because of MT? Not likely to look at Rucho reversal (per Kagan) but US v Trump, etc? So much to do and so little time with economics being front and center.
Thank you for this. I often hear that SCOTUS isn't interested in what the people think about them—that they are "above all that" and live in their SCOTUS bubble. I am glad to hear that might not be the case. Although some of Alito's writings do seem completely out of touch with reality. Anyway, I do hope the midterm results shed some light for Roberts et al. on how the populace views the state of our democracy, of which SCOTUS is part and not outside of.
After last night's slaughter, a lame duck retirement and confirmation would be politically suicidal for Republicans. Republican Senators viewing the carnage would probably be intelligent enough to find some way to avoid it, perhaps by staying home when the voting was done like their voters did yesterday.
Thanks for, once again, making what is going on clear—well, clearer—and outlining the consequences of impending choices. I can’t really afford to subscribe to paid substacks. But Mr. Dog has agreed to eat more kibble (and less fancy stuff) so that I can support you and Marc.
The Federalist Society, now unmasked as the Royalist Tory Society, will not back away from [Republican] Presidents as Kings. Whether they back away from King Trump, that's the question.
And I think they will for the reasons that you laid out. Republicans losing one or two seats, out of nine, for a generation will be better than keeping one or two seats out of FIFTEEN. A Court expansion would also include, I believe, an Appeals Court expansion that takes the Fifth Circuit primarily and divides it up and dilutes its members.
Finally, we will see what happens to judges at all levels with a Democratic Senate in place for at least 4 years. The young Aileen, for example, has almost no hope of getting on SCOTUS or the 11th Circuit. The 11th Circuit judges have no hope of advancing to SCOTUS by protecting the young Aileen's questionable rulings shielding Trump from the law. Ditto Judge Ho on the 5th Circuit.
Are you asking court conservatives to make a reasonable choice now, post-election, between an ideological and a pragmatic approach?
A court that blithely promulgated the so-called "unitary executive theory" may not be capable of making pragmatic choices ... they must have had some inkling of what the consequences would be, but forged on regardless of the chaos.
I hope, for all of our sakes, that they will come down from Olympus. But I don't feel particularly optimistic.
We get a very quick test with Mary Catholic Parish and the initial signs look bad. That one for me means end tax exemption for religious groups. New amendment clarifying that freedom of religion does not mean freedom to discriminate. With my money - and yes I live in Colorado. And solidifies the need for a complete reset of the Supreme Court.
Well stated, and compelling reading...for the Justices! CJ Roberts always fancied himself — and "his" Court — as "above politics", even though the evidence was anything but. He is no fool, and can read the room as well as any well-informed voter can, so the ball is indeed in his Court, as Prof. Vladeck suggests.
Spot-on analogy with FDR's second term, and one hopes that not only Roberts, but erstwhile "swing vote" - but not really - J Coney Barrett and colleague J Kavanaugh also heed the message from a collective vox populi.
Many voters finally realized that the Trump Administration and the Republican Cult/Party have no connection with what they were promised, hoped for and expected. I wonder how many perceive the Roberts Court as an accomplice and enabler of the cruelty, incompetence and corruption we have experienced since January 2025. And/or will perceive it in this light if from now until 2029 the Court continues to let a potentially even more dangerous DOJ aka President’s personal lawyers abandon any and all pretensions of adhering to the rule of law. Maybe disbarment and other punishments of a few prominent lawyers would make it more likely that Roberts will emulate his namesake of 90 years ago, to salvage his otherwise deplorable legacy, in the face of popular reaction against the policies of a very unpopular President, whereas in 1936 the popular reaction was a mirrror image in favor of a very popular President’s policies,
I also wonder what lessons if any are to be drawn from Poland’s struggle to restore the rule of law, after eight years of state capture by the nationalist, right wing illiberal - named after the antonyms of its precepts - Law and Justice Party (PiS is the acronym in Polish). PiS overhauled the judiciary by stacking the constitutional court with loyalists. A challenge or dilemma for the current Polish reformist government is whether it can unravel the legacy of PiS without leaving in place or introducing new or modified procedures that a future authoritarian leadership can manipulate for its ignoble purposes. Despite the very different histories of Poland and the United States in terms of their history, their institutional structures, and rules, there are significant parallels between these two nations in considering the future of the rule of law, from the stacking of their highest court to the challenge of how to reverse and prevent future erosions of the rule of law by conducting necessary changes without stepping outside the rules. If it is argued that the ends justify the means, nevertheless the question must be addressed whether the means employed will leave the door open for them to be exploited or misused later by a new group of bad actors to again undermine the rule of law after it has been restored.
I think both Thomas and Alito have too much ego to retire right now.
Great piece Steve! Thanks for you brilliant break down on what SCOTUS should be and will be thinking about. Sounds like a lot of justice might be ahead.
I hope you're right and the Court moderates and stops rulings that are contrary to the law and Constitution. A further check on Alito or Thomas retiring may be fear a Trump appointee would not pass the Senate, although I suppose they could retire effective upon a successor being approved. Would Collins or the like want to further tarnish her legacy for voting during a lame duck session?
OTOH, I worry that the Court may double down on its assault on voting rights and, should the Democrats pass court reform, rule it unconstitutional (no matter how obviously it isn't), setting up a mess.
The chance of the "good behavior" clause being tested is now close to zero. Will the chilling effect now gone will appeasement change? Poss new majorities Gorsuch, Kagan, Barrett, Soto, Jackson with CJ swinging in selectively, & opportunistic Kav toning down unitary Pres in advance of 28. Sec of State elections only had 2 flips which is important for 28 election but not the wave as much in the weeds. Citizens United revisited because of MT? Not likely to look at Rucho reversal (per Kagan) but US v Trump, etc? So much to do and so little time with economics being front and center.
Thank you for this. I often hear that SCOTUS isn't interested in what the people think about them—that they are "above all that" and live in their SCOTUS bubble. I am glad to hear that might not be the case. Although some of Alito's writings do seem completely out of touch with reality. Anyway, I do hope the midterm results shed some light for Roberts et al. on how the populace views the state of our democracy, of which SCOTUS is part and not outside of.
After last night's slaughter, a lame duck retirement and confirmation would be politically suicidal for Republicans. Republican Senators viewing the carnage would probably be intelligent enough to find some way to avoid it, perhaps by staying home when the voting was done like their voters did yesterday.
As a first shot across the Supreme Court's bow, I'd like to see a mandatory ethics standard imposed though even that might still be out of reach
At least for the next two years.
Even if they write it themselves, it’s a better place it be. It’s currently optional
Thanks for, once again, making what is going on clear—well, clearer—and outlining the consequences of impending choices. I can’t really afford to subscribe to paid substacks. But Mr. Dog has agreed to eat more kibble (and less fancy stuff) so that I can support you and Marc.
The Federalist Society, now unmasked as the Royalist Tory Society, will not back away from [Republican] Presidents as Kings. Whether they back away from King Trump, that's the question.
And I think they will for the reasons that you laid out. Republicans losing one or two seats, out of nine, for a generation will be better than keeping one or two seats out of FIFTEEN. A Court expansion would also include, I believe, an Appeals Court expansion that takes the Fifth Circuit primarily and divides it up and dilutes its members.
Finally, we will see what happens to judges at all levels with a Democratic Senate in place for at least 4 years. The young Aileen, for example, has almost no hope of getting on SCOTUS or the 11th Circuit. The 11th Circuit judges have no hope of advancing to SCOTUS by protecting the young Aileen's questionable rulings shielding Trump from the law. Ditto Judge Ho on the 5th Circuit.
Are you asking court conservatives to make a reasonable choice now, post-election, between an ideological and a pragmatic approach?
A court that blithely promulgated the so-called "unitary executive theory" may not be capable of making pragmatic choices ... they must have had some inkling of what the consequences would be, but forged on regardless of the chaos.
I hope, for all of our sakes, that they will come down from Olympus. But I don't feel particularly optimistic.
We get a very quick test with Mary Catholic Parish and the initial signs look bad. That one for me means end tax exemption for religious groups. New amendment clarifying that freedom of religion does not mean freedom to discriminate. With my money - and yes I live in Colorado. And solidifies the need for a complete reset of the Supreme Court.
Well stated, and compelling reading...for the Justices! CJ Roberts always fancied himself — and "his" Court — as "above politics", even though the evidence was anything but. He is no fool, and can read the room as well as any well-informed voter can, so the ball is indeed in his Court, as Prof. Vladeck suggests.
Spot-on analogy with FDR's second term, and one hopes that not only Roberts, but erstwhile "swing vote" - but not really - J Coney Barrett and colleague J Kavanaugh also heed the message from a collective vox populi.
Many voters finally realized that the Trump Administration and the Republican Cult/Party have no connection with what they were promised, hoped for and expected. I wonder how many perceive the Roberts Court as an accomplice and enabler of the cruelty, incompetence and corruption we have experienced since January 2025. And/or will perceive it in this light if from now until 2029 the Court continues to let a potentially even more dangerous DOJ aka President’s personal lawyers abandon any and all pretensions of adhering to the rule of law. Maybe disbarment and other punishments of a few prominent lawyers would make it more likely that Roberts will emulate his namesake of 90 years ago, to salvage his otherwise deplorable legacy, in the face of popular reaction against the policies of a very unpopular President, whereas in 1936 the popular reaction was a mirrror image in favor of a very popular President’s policies,
I also wonder what lessons if any are to be drawn from Poland’s struggle to restore the rule of law, after eight years of state capture by the nationalist, right wing illiberal - named after the antonyms of its precepts - Law and Justice Party (PiS is the acronym in Polish). PiS overhauled the judiciary by stacking the constitutional court with loyalists. A challenge or dilemma for the current Polish reformist government is whether it can unravel the legacy of PiS without leaving in place or introducing new or modified procedures that a future authoritarian leadership can manipulate for its ignoble purposes. Despite the very different histories of Poland and the United States in terms of their history, their institutional structures, and rules, there are significant parallels between these two nations in considering the future of the rule of law, from the stacking of their highest court to the challenge of how to reverse and prevent future erosions of the rule of law by conducting necessary changes without stepping outside the rules. If it is argued that the ends justify the means, nevertheless the question must be addressed whether the means employed will leave the door open for them to be exploited or misused later by a new group of bad actors to again undermine the rule of law after it has been restored.
This is just a wonderful analysis of both points. Thank you!
A superlative review!
Great post, as always! Relish the day!!!