Hang in there Nicholas. I'm very often in lockstep with Brian but your argument is super compelling. I learned so much just now. And thank you Brian for bringing him on, kind of spur of the moment. I would say 'yes' to more of this!
The real problem is the Supreme Court. The universal injunction is not the most important issue, but it is symptomatic of the rot, especially when they ignored the issue when the Biden administration presented it. I've little doubt they'll find a convenient workaround the next time a Democratic priority is litigated. They are now purely result oriented, without any consistent analytic principles, and do not appear to care enough to even pretend.
Your preference for consistency or intellectual honesty is admirable, but since the GOP and its facilitators don't care and aren't embarrassed in the least suggests that Democrats should not insist on it for themselves while watching the GOP run roughshod. For example, I'm old enough to remember when the GOP would go ballistic over a 3+ trillion increase in the deficit for a Democratic priority.
Those six were selected and confirmed to establish Conservative Republican Doctrine as the law of the land. Since it only takes four justices to take a case, you can bet they choose cases where they intend to rule in a certain way.
Appreciate the back and forth here. Professor Bagley addressed many of my concerns, though I'm far more cynical of the motives of the MAGAt justices. Frankly my cynicism is fairly well earned. They do not deserve my presumption of their good faith.
My court reform dreams:
- Expanded SCOTUS with rotating membership amongst the appellate courts.
- SCOTUS hear all questions, no more cert except at en banc/panel.
- No more cherry picking the question.
- Single Justice, Panels & en banc at the SCOTUS level to handle the additional load.
- At district level, any party requesting a nationwide injunction heard by a 3-judge panel selected district-wide with interlocutory appeals directly to SCOTUS (again single justice, panel, en banc)
- I low-key think appellate judges/scotus justices should spend 1 out of 5 years doing being a district court judge since they have so little respect for the fact-finding work done there.
These are ways that maybe could make SCOTUS work the way we presumed it worked instead of the calvinball, "YOLO I got my MAGAts on the court let's see what we can get" that's been going on since the Trump 3 joined the court.
I'm about halfway through this but I wanted to pause and just appreciate hearing this conversation get worked out. My first thought when hearing about the ruling was: if this had happened tied to Biden's Student Debt Forgiveness plan, would the conversation have been about how the Supreme Court is handing over democratic legitimacy away from rogue conservative justices?
I know electorally, procedural topics like this and the filibuster are like coating the conversation in a thick film of gray paste. But at what point do Democrats just recognize that they need to wield authority when they have it?
Anyways I'm still thinking through things, I just am glad someone is talking about this side of it. Obviously the top line substance of the ruling is horrible so I get that focus, I just did feel like the conversation is missing the deeper point. I'm also not a constitutional scholar so I want to hear other thoughts about this from differing opinions.
It would have been helpful is Nicholas had addressed the idealogical split in the ruling, which he saw as somewhat positive, including commenting on the specifics of the dissents.
Two very smart people, and well worth watching. Thank you.
I do wonder if you'd asked Nicholas Bagley a year ago how he thought US v Trump would be resolved (it was decided July 1, 2024). Would he have said that he thought Trump would win immunity? Or would have predicted, as he confidently does here, that there were 6 or 7 or 8 or 9 votes in against the proposition that if the president does it, it's not illegal?
As Upton Sinclair wrote, it's very hard to get someone to believe in something when their salaries depend on not believing it. Bagley is a lawyer (so am I), and even worse, he's a professor of Constitutional Law (which I also used to teach - but to high school students). I'm sorry to say. . . there is no such thing as Constitutional Law any more, if there ever was (and I do think there was, sort of). There are no guiding principals. There is simply power.
Bagley describes this situation well when he says it's a fair question to wonder why the Court took this case now, and ended nation-wide injunctions now. He sees the argument that this was just about power - that the Court wants to give Trump free rein here. What I think he misunderstands is 1) that they very well may narrow birthright citizenship and 2) that even if they don't, they want to give Trump more power for all sorts of unlawful orders other than this one.
The barbarians are at the gate - I urge anyone to spend a day in immigration court and watch ICE agents snatching up immigrants with no criminal records and whose asylum cases are still pending - meaning that under the law they are protected from removal. It's not stopping them.
Trump and his administration are white supremacists enacting the alt-right fantasy of "remigration" - sending as many people of color out of the country or to concentration camps which they are building and intend to build fast and furious with the $45billion allocated in the BBB for that purpose. And there are at least 4 votes on the Court for this agenda.
The lower courts were slowing this down. Did it suck that the yahoo in Texas could ban abortion medicine? Yes. Was it wrong? Of course - because the law enjoined was constitutional. But right now we need those lower courts to enjoin the unlawful orders coming from this administration, and there are a whole lot of them and there are going to be a whole lot more.
The timing matters - slowing Trump and Miller down is important, and losing any tool - no matter how dull a tool it is - is a disaster.
Hang in there Nicholas. I'm very often in lockstep with Brian but your argument is super compelling. I learned so much just now. And thank you Brian for bringing him on, kind of spur of the moment. I would say 'yes' to more of this!
The real problem is the Supreme Court. The universal injunction is not the most important issue, but it is symptomatic of the rot, especially when they ignored the issue when the Biden administration presented it. I've little doubt they'll find a convenient workaround the next time a Democratic priority is litigated. They are now purely result oriented, without any consistent analytic principles, and do not appear to care enough to even pretend.
Your preference for consistency or intellectual honesty is admirable, but since the GOP and its facilitators don't care and aren't embarrassed in the least suggests that Democrats should not insist on it for themselves while watching the GOP run roughshod. For example, I'm old enough to remember when the GOP would go ballistic over a 3+ trillion increase in the deficit for a Democratic priority.
Those six were selected and confirmed to establish Conservative Republican Doctrine as the law of the land. Since it only takes four justices to take a case, you can bet they choose cases where they intend to rule in a certain way.
Appreciate the back and forth here. Professor Bagley addressed many of my concerns, though I'm far more cynical of the motives of the MAGAt justices. Frankly my cynicism is fairly well earned. They do not deserve my presumption of their good faith.
My court reform dreams:
- Expanded SCOTUS with rotating membership amongst the appellate courts.
- SCOTUS hear all questions, no more cert except at en banc/panel.
- No more cherry picking the question.
- Single Justice, Panels & en banc at the SCOTUS level to handle the additional load.
- At district level, any party requesting a nationwide injunction heard by a 3-judge panel selected district-wide with interlocutory appeals directly to SCOTUS (again single justice, panel, en banc)
- I low-key think appellate judges/scotus justices should spend 1 out of 5 years doing being a district court judge since they have so little respect for the fact-finding work done there.
These are ways that maybe could make SCOTUS work the way we presumed it worked instead of the calvinball, "YOLO I got my MAGAts on the court let's see what we can get" that's been going on since the Trump 3 joined the court.
I'm about halfway through this but I wanted to pause and just appreciate hearing this conversation get worked out. My first thought when hearing about the ruling was: if this had happened tied to Biden's Student Debt Forgiveness plan, would the conversation have been about how the Supreme Court is handing over democratic legitimacy away from rogue conservative justices?
I know electorally, procedural topics like this and the filibuster are like coating the conversation in a thick film of gray paste. But at what point do Democrats just recognize that they need to wield authority when they have it?
Anyways I'm still thinking through things, I just am glad someone is talking about this side of it. Obviously the top line substance of the ruling is horrible so I get that focus, I just did feel like the conversation is missing the deeper point. I'm also not a constitutional scholar so I want to hear other thoughts about this from differing opinions.
Is this guy related to Merrick Garland?
It would have been helpful is Nicholas had addressed the idealogical split in the ruling, which he saw as somewhat positive, including commenting on the specifics of the dissents.
Two very smart people, and well worth watching. Thank you.
I do wonder if you'd asked Nicholas Bagley a year ago how he thought US v Trump would be resolved (it was decided July 1, 2024). Would he have said that he thought Trump would win immunity? Or would have predicted, as he confidently does here, that there were 6 or 7 or 8 or 9 votes in against the proposition that if the president does it, it's not illegal?
As Upton Sinclair wrote, it's very hard to get someone to believe in something when their salaries depend on not believing it. Bagley is a lawyer (so am I), and even worse, he's a professor of Constitutional Law (which I also used to teach - but to high school students). I'm sorry to say. . . there is no such thing as Constitutional Law any more, if there ever was (and I do think there was, sort of). There are no guiding principals. There is simply power.
Bagley describes this situation well when he says it's a fair question to wonder why the Court took this case now, and ended nation-wide injunctions now. He sees the argument that this was just about power - that the Court wants to give Trump free rein here. What I think he misunderstands is 1) that they very well may narrow birthright citizenship and 2) that even if they don't, they want to give Trump more power for all sorts of unlawful orders other than this one.
The barbarians are at the gate - I urge anyone to spend a day in immigration court and watch ICE agents snatching up immigrants with no criminal records and whose asylum cases are still pending - meaning that under the law they are protected from removal. It's not stopping them.
Trump and his administration are white supremacists enacting the alt-right fantasy of "remigration" - sending as many people of color out of the country or to concentration camps which they are building and intend to build fast and furious with the $45billion allocated in the BBB for that purpose. And there are at least 4 votes on the Court for this agenda.
The lower courts were slowing this down. Did it suck that the yahoo in Texas could ban abortion medicine? Yes. Was it wrong? Of course - because the law enjoined was constitutional. But right now we need those lower courts to enjoin the unlawful orders coming from this administration, and there are a whole lot of them and there are going to be a whole lot more.
The timing matters - slowing Trump and Miller down is important, and losing any tool - no matter how dull a tool it is - is a disaster.