Supreme Betrayal: How the Supreme Court and Constitutional Law Have Failed America

We discuss the slush fund kerfuffle with Professor Smauel Bagenstos, who served as general counsel to the Department of Health and Human Services and has written a forthcoming article on slush funds. One theme is that Trump’s lawyers got a decent way toward giving J6 rioters access to federal funds in a way consistent with the formal law but muffed it at the level of detail. Another is that it’s really silly—and says something bad about some kinds of discourse about this sort of thing—to focus on legal formality. And, if you hold out until the end you get one of Mark’s favorite quotations about lawyers, from Carl Sandburg.

In our second episode on the Callais decision we turn to criticism, though only after doing our best to identify some things in the decision that might be correct. Among our concerns are whether the Court was right in saying that things have changed (for the better) since 1965, whether the opinion was a reasonable application of the Court’s prior decision to refrain from federal judicial regulation of partisan gerrymandering, and whether partisan gerrymandering is defensible in places where partisan affiliations are highly correlated with race. And we raise questions about the Court’s apparent commitment to letting district boundary decisions—and more—be made by democratically responsible bodies when those decisions actually constitute the kind of democracy we have.

In the first of two episodes about the Callais decision we speculate about its immediate impact on the 2026 elections, with Mark trying to minimize that impact and Mike arguing that it’s likely to be significant. Then we provide a detailed explanation of the historical background of the 1965 Voting Rights Act, emphasizing the ways in which it was initially interpreted (a combination of generosity and restrictiveness), how Congress responded, and then how the Court began to narrow its effects. The doctrinal details, while intricate, are important for listeners trying to understand exactly why the Callais decision is so threatening to minority representation.

Today we take up a challenge to our views about the tension between democratic self-governance and the contemporary form of judicial that Mark draws from the scholarship of political scientists including Robert Dahl. Dahl’s challenge, in a shorthand, is that American politicians, speaking for we the people, like that form of judicial review—that it has democratic credentials. Other political scientists identify different periods or “regimes” of dominant majorities, and judicial review fits comfortably when there is such a majority. Mike raises questions about the broadbrush nature of Dahl’s account and about the important anti-democratic role judicial review plays when no dominant majority is in place (during interregnums) and in thwarting local majorities not in line with the national majority. Mark counters with the observation that sometimes the local majorities are oppressing people who are in line with the national majority (blue cities in red states or vice versa), and that in any event the fact that one regime eventually replaces another diminishes the degree to which any judicial decision is entrenched and thwarts what Mike calls the ambitions of judicial review. There’s a lot more detail in this rather long episode, and we’ll revisit some of its themes in later episodes.

In this episode we get to the heart of Mike’s book, his argument that judicial review as practiced today can’t be justified because justification requires a foundation in good constitutional theories—and none of the theories on offer are good enough. After a minor skirmish over what’s good enough, we take up a feature of Mike’s account that he finds attractive—that deconstitutionalizing everything would open the way for pragmatic compromises on the deep issues of principle that divide us. Mark responds that, while that might have been true in the past when our parties were coalitions of disparate interests, it’s no longer true today where our parties are ideologically unified and strongly polarized. He argues that in today’s world the result of de-constitutionalization would lead to take-or-leave-it legislation by whoever happens to control the levers of power, not messy compromises. We leave it at that, with further discussion to come in our final episode on Mike’s book.

We try to sell some books!—Mike’s forthcoming The Constitution Cannot Save Us and Mark’s Who Am I to Judge? Mike describes his book and then we talk about the role of law clerks in writing Supreme Court opinions today because the topic actually gets us to the core disagreement between us, about the failings of constitutional theory and the role of judgment and craft in justifying the power the Court exercises. We don’t resolve our disagreements but maybe listeners will learn something from the disagreement—and of course come to their own conclusions.

We take on the decision invalidating President Trump’s tariffs. Mike offers what he calls a democratic defense of a decision that would have, in his terms, preserved the status quo and let the tariffs go into effect, and offers a backup explanation that doing so would be more likely to generate a productive dialogue between Congress and the President possibly resulting in more precise delegations of authority to the President. Mark says that he doesn’t understand the democratic argument and isn’t convinced by the back up argument. Disagreement is more muted about the major questions doctrine, the second topic in the episode, where we agree that as a doctrine it empowers the courts rather than Congress, but that it might be a component of a common sense analysis of statutory language in its overall context. Finally we discuss possible explanations for how some of the justices voted, and here too a disagreement surfaces, with Mike arguing that what Mark calls superficial political explanations—country-club Republicans don’t like tariffs, Democratic appointees don’t like Trump—are important and Mark arguing that they are, well, superficial, and that interesting explanations for voting behavior lay deeper.

Pretty much everyone who looks into the matter knows that courts don’t enforce statutory, constitutional, or international law limits on the deployment of US military forces overseas. What are we to make of that fact? That we don’t need judicially enforceable limits on this sort of policy choice to get along reasonably well? That the limits work “behind the scenes” to affect the choices political actors make? Or, perhaps more disturbingly, that legal limits in this area are pretty much like legal limits everywhere: they effectively limit exercises of power by powerful people who want to comply with the law? Is it really true that, as Plato’s character Thrasymachus might be taken to suggest, law is merely the interest of the powerful?

After telling the semi-salacious story of the attempted assassination of Supreme Court Justice Stephen Field in 1889 we explore the implications of the Supreme Court case that dealt with the attempt for the possibility of state prosecutions of ICE and CBP officers for the killings of Renee Nicole Good and Alex Pretti. That leads us to a discussion of the costs and benefits of using the rhetoric of “unconstitutionality” in political protests against ICE, in which we elaborate on some of the disagreements between us that we introduced in earlier episodes.

Could Senator Mark Kelly successfully be prosecuted for sedition? Not under current law as developed by the Supreme Court. Tushnet presses Seidman on his opposition to the Court’s invocation of the Constitution to prevent democratically elected governments from enacting whatever policies the people want—even in connection with speech restrictions. Seidman sticks to his guns and says that, though prosecuting Kelly would be profoundly unwise the Supreme Court shouldn’t block a prosecution by invoking the First Amendment. From there we clarify our long-standing disagreements, ending with Tushnet’s observation that when the Supreme Court is hitting on all cylinders it contributes to democratic self-governance and Seidman’s contention that the Court misfires so often that we ought to junk the car.

Our guest is David Luban, a distinguished legal philosopher who has written widely about military law and ethics. We use the Trump administration's drone strikes on "drug boats" as the vehicle for talking about the tension--such as it may be--between law and hierarchical authority, for example when ordinary soldiers are instructed that they must disregard unlawful orders. As usual with us, we try to show that the issues are much more complicated than they are typically presented as being--to the point that we end with a brief (and inadequate) discussion of Joseph Raz's ideas about law as offering "exclusionary reasons" for acting without regard to your own evaluation of the rightness of what you're being told to do.

We have a conversation with Genevieve Lakier about the First Amendment and the courts in our current situation. She defends recourse to the courts; we are as usual more skeptical. We go into some aspects of the political economy of major media, emphasizing the problems created by media consolidation and the difficulty of dealing with those problems not merely because of the normative issues we raised in discussing Jimmy Kimmel but also because the political-economic causes of consolidation play out as well in structuring the Supreme Court. And we talk about the distinction between the First Amendment as law and the First Amendment as a component of a general political culture that shapes both what the courts do and how ordinary politics plays itself out in expression-sensitive contexts.

After some reflections on how the oral arguments in the tariff case affect our expectations about what the Court might do, we turn to the Court’s pending decision in a case challenging the constitutionality of the key remaining provision of the 1965 Voting Rights Act. We offer what we hope are some more in-depth and analytic comments on the doctrines in play in the case and (as usual!) highlight the ways in which the arguments against the statute are rife with internal tensions. We conclude with some unoriginal observations about the political implications of a decision to invalidate the Act and with what we hope are some more original observations about how to situate the Court’s likely action in the kind of broader account of American political development that we’ve offered sporadically in the podcast and in a more focused way in our episodes on the Constitution after Trump.

We continue our speculation about constitutionalism after Trump (after some mundane observations about the 2025 elections), by broadening our lens to include some thoughts about what progressives might do to present appealing visions of an egalitarian and multicultural society that’s part of our heritage. We disagree a bit about the level at which the conversation should be pitched and then turn to some suggestions about “principled compromises” that progressives could offer to appeal to some people who at present find MAGA-ism the best thing available to them. The compromises deal with public support for education in religiously affiliated schools and some aspects of trans rights. We disagree about what the proposed compromises, with Tushnet arguing that they either don’t give MAGA supporters anything they can’t get from the Supreme Court or mistakenly treat issues as serious policy proposals when they are, in the jargon, performative. We don’t resolve our disagreements but promise to come back to them later!

Our conversation with Richard Re focuses on his Foreword to the Harvard Law Review’s annual Supreme Court Review. The Foreword argues that the Roberts Court today is a conservative version of the Warren Court whose decisions are as supported today or perhaps even better supported today by a political majority as were the Warren Court’s decisions. We suggest that his argument is a domesticated version of the more politically engaged analysis of Supreme Court decisions offered by people associated with Critical Legal Studies—and that the domestication can’t conceal the fundamentally political nature of the Court’s decisions (today or during the Warren Court era). Re in turn disagrees!

If we manage to extricate ourselves from our current constitutional plight, what might things look like? Or, alternatively, what sorts of constitutionally inflected policies should Democrats offer as part of their political effort to defeat Trumpism? We argue pretty forcefully against what we call “restorationism,” a program that would simply reinstitute the constitutional agenda that MAGA constitutionalism rejects. This episode focuses on the role that skepticism about expertise plays in MAGA constitutionalism. After describing how that skepticism is tied to the extremely strong theory of the unitary executive that the Trump administration advances, we offer some thoughts about how progressive policies—particularly with respect to the design of the institutions of the administrative state—could combine some degree of justified skepticism with greater popular participation in lawmakng in ways that some MAGA voters as well as many progressives might find appealing.

We talk about the Jimmy Kimmel episode, a small victory in the fight against Trumpism. We range more widely, though, in identifying no fewer than five groups who have competing First Amendment interests in having Kimmel on or off the airwaves, which makes figuring out what the First Amendment “means” in this setting. We emphasize the interests of broadcasters in choosing what to air and the interests of potential listeners in hearing—and preventing others from hearing—what they want. Any government intervention supports the free-speech interests of one or another group and undermines the free-speech interests of other groups. After discussing the way in which New Deal constitutional doctrine tried to separate economic regulation from regulation of fundamental rights, we discuss the relation between property rights and the ability to exercise your right to free expression, we end with a discussion of the possibility of antitrust regulation of large media corporations, which was implicated in the Kimmel episode. Reconciling antitrust regulation of the sort progressives want with existing constitutional doctrine takes some serious analytic work, which progressives ought to be doing now.

Why are the birthright citizenship cases both not such a big deal and a big deal? After going through the arguments for the Trump administration’s position in some detail (the arguments against it are so obvious that we don’t spend much time on them), we situate the cases in the administration’s larger policy and ideological agendas: from a policy point of view they aren’t that big a deal, but from an ideological one they might be.

Our conversation with Will Baude covers his ideas about originalism as "our law" and the implications of his position for a constitution--ours, perhaps--that isn't normatively attractive overall.

We pick up after our summer break with a recap of our arguments about constitutional theory. Then we discuss the pending Supreme Court decision about President Trump’s power to impose tariffs, getting into some weeds that most popular commentary avoids, including a lot of detail about the major questions doctrine.

Today we apply our way of thinking about the Constitution—what we’ve been calling constitutional theory—to a topic that isn’t usually discussed in those terms even though it gets a lot of attention: constitutional criminal procedure, focusing on police practices like stop-and-frisk and on the Miranda warnings. As usual our questions are about the connection between judicial (and political and bureaucratic) regulation of police practices and the people’s ability to govern itself. And as usual we divide (a bit) over whether courts have made things better, whether they’ve actively made things worse by exacerbating the race-based inequalities produced by the politics of crime, and whether the courts might come up with better ways of regulating police conduct that would enhance self-government.

This current events episode uses ICE arrests of public officials and protestors as the vehicle for a discussion of jury nullification as a constitutional or political practice. We begin with the story of abolitionist interference with the renditions—a word in the news again—of fugitives from enslavement as authorized by the 1850 Fugitive Slave Act. We use jury nullification to explore the opposition between “law” and “non-law” in political practice. We also discuss more briefly some aspects of the First Amendment defenses Harvard University is mounting against the Trump administration’s attacks—and reflect even more briefly on the importance of preserving civil society’s institutions as proto-authoritarians seek to move their agenda forward.

Joseph Fishkin and William Forbath join us to discuss their book The Anti-Oligarchy Constitution. We talk about what their book's title describes, why they think it matters to describe it as a "constitutional" position rather than a "mere" set of policy prescriptions, the importance of historical traditions in thinking about the political use of the word "constitutional," the advantages and disadvantages of using that word as an intensifier, and more (including a digression of the possibility of "secession" or a division of the United States into "blue" and "red" nations)."

Mike gets a chance to lay out his approach. We begin with a longish discussion of the Emancipation Proclamation: Was it merely a “bill of lading”/military measure (Mark) or an extraconstitutional action justified because it was right (Mike)—or both? Mike then develops his approach by distinguishing between simple justice and legal justice and argues that legal justice interferes with the accomplishment of simple justice by trying to shut down disagreements about simple justice requires with an authoritarian “Get over it!” His alternative is the development of norms of reciprocity, mutual respect, compromise, and more to guide the temporary resolution of such disagreements through ordinary politics. Mark snipes along the way, wondering whether those norms can be retrieved from today’s swamps of ordinary politics.

The final (!) episode laying out Tushnet’s “craft” account of what judicial review done well looks like. We discuss Tushnet’s argument that good judges use legal reasoning, not direct appeals to justice, to explain and justify what they do. His shorthand is that, just as a well-designed legislative process gives everyone a fair shot at getting their policies adopted and so produces outcomes that those who lose out should and typically do accept, so a well-performed judicial function gives everyone a fair shot at making reasoned arguments that judges evaluate on the merits. And that means, for him, that good judges engage in legal reasoning, working with the plumbing of our constitutional system. Seidman argues that legal reasoning is so far removed from the way ordinary people think about the issues raised in constitutional cases that the judges Tushnet admires or hopes to see on the Court can’t resolve constitutional controversies in a way that those whose positions are rejected should or are likely to accept. Along the way we talk about the mindset judges should bring to their task, criticizing Justice O’Connor’s slogan, “Sometimes Wrong but Never in Doubt.”

We have our first guest! We engage in a wide-ranging conversation with Aziz Rana, jumping off from his important book The Constitutional Bind: How Americans Came to Idolize a Document That Fails Them (which we urge you to buy and read). Rana’s book ends before the turn of this century, and our conversation both extends the ideas he develops there (particularly about the connection between the role of the US on the international scene and the US constitutional creed), and takes up his and our thinking about contemporary issues.

Another discussion of current events and constitutional theory. We distinguish between “small bore” and “large bore” challenges to Trump’s agenda—the former dealing with individual injustices and the latter with more comprehensive programs like tariffs—and suggest that courts might do something about the former but are less likely to do anything about the latter. We disagree as usual about the potential political impact of interventions in small bore cases. And we wrap the episode up with a discussion of whether Trump could serve a third term through creative constitutional interpretation or a workaround—and end up with arguing over the connection between some embedded norms like a “no third term” norm and the Constitution itself. More about that to come.

This current events episode uses the Alien Enemies Act case before Judge Boasberg as our vehicle for examining what constitutional theory can contribute to understanding fast-moving current events. We argue about how nervous we should be about Seidman’s arguments for constitutional disobedience in our current context and about the contributions, if any, constitutional litigation can make to alleviating—or exacerbating—what’s going on. We conclude with a description of what commentators might mean when they describe Trump’s actions as “illegal,” and discuss why such descriptions might not be as helpful as you might initially think.

With the idea of constitutional "workarounds” as a focal point, we describe the quite large areas of agreement between us about democratic constitutions in general and about the US Constitution specifically and try to clarify where our disagreements lie. The disagreements are mostly about how the US constitutional system functions today and partly about what a good democratic constitution building upon actual US experience would look like.

This episode lays out a different way of thinking about the US Constitution as of 2025. (How different it is from Tushnet’s is something we discuss in the episode and will continue to worry over.) Seidman begins by describing what the Constitution as written in 1789 was designed to do then—set up a government, set out some compromises between then-important political forces in a sort of peace treaty, and state some general aspirations the new government might hope to advance. He then asks whether adhering to the Constitution of 1789, particularly by treating it as in general enforceable by the courts, is necessary—or even useful—as a way of keeping the government running, maintaining social order in the face of disagreement, and guiding the nation toward implementing attractive values. His answer is, “Decidedly not.” Along the way Tushnet offers some support and some criticisms, and the discussion opens the way to exploring our differences in more detail in a subsequent episode.

After our discussion of the first month of the Trump administration and constitutional law, we return to our exploration of constitutional theory—this time turning away from theories of interpretation to theories about constitutional foundations: What’s the best story about why people adopt constitutions? This episode begins to examine stories that say that constitutions are good ways—maybe the only way—to work out how to peacefully resolve their disagreements about what ought to be done through what we call ordinary politics. We look at some reasons for (and against) entrenching the “rules about ruling”—and expose some disagreements about constitutional foundations that we’ll get into in later episodes.

This is a “current events” episode. We discuss whether, one month in, we should think about the Trump administration as initiating a constitution crisis or a constitutional revolution--regime change at home. Should we think of courts as the opposition’s Obi-Wan Kenobi—its only hope—or as doing nothing more than putting speed bumps in Trump’s way (and doing that might be good enough). Moving outside our wheelhouse we also offer some amateur political analysis of the conditions for Trump’s political success or failure with a project of political transformation.

This episode discusses living constitutionalism and what we call eclectic approaches to constitutional interpretation such as Phillip Bobbitt’s “modalities” approach. We argue that such approaches have some virtues—including greater descriptive accuracy than originalism and democracy-focused approaches—but significant weaknesses. We also begin to introduce Tushnet’s “craft” account of constitutional interpretation, to be developed in more detail in later episodes.

This episode deals with "current events"--some of the constitutional issues swirling around the arrival of the second Trump Administration. We discuss the use of the presidential power to pardon by Biden and Trump (and disagree a bit about whether there are legal limits on that power), the implications of the collapse of the criminal cases against Trump, the TikTok case and the effort to eliminate birthright citizenship and their relationship to originalist constitutional theory.

We continue our discussion of theories of judicial review that say it should enforce--and reinforce--democracy: footnote 4 theories and John Hart Ely. We argue that these theories run up against contradictions when they try to specify particular forms of democracy that they're trying to reinforce. As many have argued these theories can be quite narrow, leaving untouched forms of democratic failure that ought to be remedied, or quite broad, giving courts the power to displace ordinary legislation across extremely wide swathes of public policy. We also discuss Bruce Ackerman's effort to distinguish between constitutional politics, whose outcomes the courts should enforce, and ordinary politics, interest group politics whose outcomes judges should accept. And we renew our disagreement about whether or how we should respect decisions made years ago by people quite different from us.

We now begin to explore alternatives to originalism as a theory of constitutional interpretation. This episode and the next deal with approaches that say that courts can promote democracy through constitutional review. This time we take up an old and mostly abandoned approach advocated by James Bardley Thayer in 1892, that courts should invalidate statutes only if they are obviously unreasonable. Thayer said that was the right approach because legislators should and did take their responsibility to adhere to the Constitution seriously. Most of discussion challenges that assumption.

We continue our discussion of originalism, developing two themes: defenses and criticisms of the original constitution articulated by prominent African American thinkers--Barbara Jordan, Thurgood Marshall, and Frederick Douglass--that bring out the distinction between the Constitution as enforceable law and as symbol of aspirations; and historians' critiques of originalism as developed most prominently recently by Jonathan Gienapp. The two of us disagree about some important details, but end up agreeing that at the very least originalism doesn't accurately describe the way even purported originalists among the justices actually seek to justify their decisions.

This is the first of two episodes on the constitutional theory of originalism. This time we look at originalism from the inside; next time we offer broader criticisms. We spend a fair amount of time defining originalism's various versions and distinguish between academic originalism and originalism as practiced by the courts. In the end, we argue, academic originalism is difficult though not impossible to defend, but judicial originalism fails miserably at doing what its proponents claim orignalism does--keep judges from imposing their personal policy preferences in the guise of interpreting the Constitution.

Our lens broadens to deal with three issues of public policy where the Supreme Court has interfered with ordinary policy making: affirmative action, gun safety, and partisan gerrymandering. We discuss more briefly than in prior episodes the possible justifications for that interference and argue that those justifications aren't strong enough to overcome the presumption that ordinary policies should be determined by ordinary politics.

We discuss the Supreme Court's interference with the 2024 election by slow walking its consideration of Donald Trump's claim that he was immune from prosecution for his actions in connection with the January 6 insurrection. And we criticize the Court's ultimate decision for its incoherence, failure to provide guidance for the future, and inconsistency with basic ideas about our Constitution and the rule of law.

Progressives like us have vigorously criticized the Dobbs decision. Why? Doesn't it return a public policy question to the people for democratic decision-making? You'll hear our criticisms of the Dobbs decision, mostly for its internal logic, and our disagreements about the underlying issue--but our ultimate agreement that there's a fair amount to be said by people on our side of the political spectrum in favor of keeping the Court from constitutionalizing the abortion issue.

The episode deals with Trump's Supreme Court appointments and the effects of life tenureon the timing of appointments (and departures).On Facebook:  Mark TushnetOn X:  @Mark_Tushnet

This episode explores the reasons why the modern Supreme Court is out of control and why the mechanisms that have historically kept it (more or less) in control no longer work