The Judiciary as the Last Bastion of Intellectual Conservatism

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I just did a livestream during which I read through the decision in Learning Resources, Inc. v. Trump. To get the full benefit of this stream, you should watch the video, as I highlight text as I read. I share some thoughts about reading judicial decisions as a general matter, and Supreme Court justices functioning as philosopher kings. Topics addressed throughout the video include the logic of the IEEPA, the major questions doctrine, how much you should read into these opinions the justices’ views of the underlying policy, and the extent to which Trump can achieve the same results through different statutory authority. I argue that by changing the status quo, the Supreme Court has made the lives of Trump officials much more difficult.

I also explain why the judiciary is the one part of conservatism beyond the president’s ability to shape at will. In the first administration, Trump regretted most of his major appointments. Right-wing media has also been remade in his image, as has Heritage. This time around, he can have all new people in the executive branch, but he’s still stuck with those he put on the courts in the first administration. Moreover, judges go through more of an academic process to get where they are. This leads to some thoughts on the wisdom of lifetime appointments under the Constitution, as we are never one election away from a crazy person getting into power and dismantling norms and institutions. Even if Trump wants judges now who will pledge unending loyalty, there’s no way for him to enforce any promises that are implicitly or explicitly made.

I reflect on whether and how the existence of an individual as flawed as Trump changes the entire process of statutory interpretation. It seems possible to me that Kavanaugh’s dissent is correct that Congress in 1977 meant to give the president some power to implement tariffs. But they never imagined unlimited tariffs for an unlimited period of time without any procedural safeguards, enacted by a president this emotionally immature and economically illiterate. If they had foreseen someone like Trump, they probably would have explicitly limited the power to place tariffs in the IEEPA. If this is true, what does statutory intent actually mean? A lot of things are probably like this, where our laws, norms, and institutions assume a certain amount of good faith that no longer exists in the Trump era. This raises deep questions about the nature of democracy and how to protect the parts of our system that need to be preserved.

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