Over at the New York Times opinion page, I participated in a fun roundtable conversation with Professors Kate Shaw and Stephen Vladeck about the recent Supreme Court term. We discussed the Trump immunity case, my recent op-ed, the state of the Supreme Court's shadow docket, and more.
Here's one exchange:
Shaw: Will, I want to ask a couple of questions about your recent Times piece reflecting on the term. As I read you, you think the court went (badly?) astray in its two cases directly involving Trump, on immunity and on Colorado's efforts to disqualify Trump under Section 3 of the 14th Amendment. Your paper with Michael Stokes Paulsen played a critical role in the Section 3 debates.
Yet you also write that elsewhere this term, the court was faithful to originalism, a method of interpretation you favor. But is this any kind of originalist court if it's willing to jettison the method in the term's two biggest constitutional cases? One way to view the court after this term is originalist for Republican results, pragmatic for anything else.
Baude: There are plenty of examples of the court adhering to its principles even in ruling against right-wing claims — the Consumer Financial Protection Bureau appropriations case, Rahimi (the Second Amendment case), the standing cases that reversed the Fifth Circuit on both mifepristone and social media jawboning.
But I agree with your basic point. The law professor Gerald Gunther once criticized the law professor Alexander Bickel for wanting the Supreme Court to maintain "100 percent insistence on principle, 20 percent of the time." Maybe now we're getting closer to 80 percent of the time, but that remaining percentage is killer.
Shaw: Your piece ends on a tantalizing note: "When dealing with Mr. Trump in particular, the court is so sure that our other institutions cannot be trusted that it fails to look in the mirror." If it looked in the mirror, what do you think it would see?
Baude: See, that line worked so well when I could end with an ambiguity.
Shaw: I know!
Baude: It's no secret that the Supreme Court trusts no institution in America as much as it trusts the Supreme Court. That's not something unique to the Roberts court — we've been living in an age of judicial supremacy for more than 50 years. But I think the court should recognize that all of the flaws and biases it sees in other institutions are potentially true of itself, too. The justices are only human, even if they are really doing their best.
You can read the whole thing here.
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