I would change one major thing. As Roberts said, "We don't have a Trump Court, a Biden court, etc." The justices are making decisions based on their theories and positions. Ex the court overruled Roe v Wade in 2022. Ex The court has said abortion pills can be mailed
Most of these judges have come through the Federalist Society, which, of course, is going to be very Conservative. The Federalist Society believes in originalism which is their arrogant intent to try to interpret someone's thoughts from 200 years ago. Again that is sure arrogance That is the approach the six conservatives generally try to take, not what the president thinks
Alito and Thomas has had the same approach during their entire tenures. Not only do they screw up interpretations but make things up as they go Much of Alito's dissent had absolutely no constitutional basis Steve Vladeck broke this down last night. We have always had justices like this
Arrogance is the quality of having an exaggerated sense of one’s own importance. Originalism is not a doctrine of arrogance. Determining what people mean by their written words (past or present) is something we depend on every day in many contexts. The opposite philosophy, “the living Constitution” is arrogant. Pursuant to that theory, nine living people decide what rules “the people” want to live by.
The Constitution can be amended. Some provisions need amendment. Our current political leaders don’t even try to amend the document even though the discussion alone would probably heal some of the rifts between partisans.
Great explanation. Broken out this way the Supremes' decisions even seem to have a consistency that makes some sense, which gives me back a little more faith in them.
Relevant and necessary analysis. The average person would benefit greatly from this flow chart. Legalese broken down into these digestible “if this then that” formatting would help in dispelling a lot of the tribalism/polarization surrounding the Supreme Court
It's worth pointing out that the one big exception -- authority to fire -- is very likely constitutionally-correct.
For the last ~100 years we've been setting up allegedly "independent" executive-branch agencies, even though the constitution doesn't say anything about parts of the executive that are independent from the White House. Worse, the reason we want these agencies to be independent is that we have also given them the authority to make and adjudicate regulations, meaning these executive agencies effectively have legislative and judicial powers, albeit circumscribed by subject matter. The notion that parts of the executive get to make and adjudicate regulations is clearly unconstitutional.
The reason we did this is because the world got complicated enough that the constitutional structure didn't work very well. So, we made the necessary adjustments; creating agencies staffed with subject-matter experts in various fields to make, enforce and adjudicate regulations within those areas. To preserve the spirit of the constitutional separation of powers while violating the letter, we gave these agencies nominal independence, through both legislative orders and executive norms. Without that independence, the White House would obtain a collectively-incredible power to make, execute and adjudicate the rules that govern almost all facets of American life.
What we didn't do was to amend the constitution to make this new approach legal. Instead, we looked the other way.
Justice Sotomayor explained this all quite clearly in the oral arguments in the Slaughter case. Her position was that even though the letter of the constitution didn't allow this structure, the spirit of the constitution required us to continue looking the other way.
But, "we have to keep ignoring the law" is not a great legal argument, so the finding that the president does, indeed, have the authority to fire executive branch officials isn't just constitutionally defensible, the contrary position is actually rather hard to defend.
In order to protect the country from effectively losing separation of powers and becoming an elective monarchy, we need to go back to court and get SCOTUS to enforce the constitutional order, returning all lawmaking authority to Congress and all judicial authority to the judicial branch.
This will break the federal government and arbitrarily deregulate almost everything, since Congress mostly hasn't made regulations for a long time, instead directing the appropriate agencies to make them.
Either that or we need to amend the constitution to make the 20th-century executive branch architecture constitutionally valid. But we probably can't successfully do that without first proving to the voters that returning to a 19th-century federal structure in the 21st century is very bad, so step 1 is going to be to complete Trump's demolition of the modern executive branch.
In Friday’s opinion, which was released to reporters shortly before 6 p.m. EDT, the court emphasized that the federal district and appeals courts “should not enjoin or otherwise prohibit the use of the” map enacted in 2022, which is currently in use in voting already underway, “in the 2026 congressional election in Missouri.” Moreover, the court added, those courts “should not order or otherwise require Missouri to use the” new map “in the 2026 congressional election in Missouri.”
In Friday’s opinion, which was released to reporters shortly before 6 p.m. EDT, the court emphasized that the federal district and appeals courts “should not enjoin or otherwise prohibit the use of the” map enacted in 2022, which is currently in use in voting already underway, “in the 2026 congressional election in Missouri.” Moreover, the court added, those courts “should not order or otherwise require Missouri to use the” new map “in the 2026 congressional election in Missouri.”
For the third time, Supreme Court declines to allow Missouri to use congressional map expected to aid Republicans
22 hours ago — Supreme Court on Friday declined to allow Missouri to use a new congressional map, intended to benefit Republicans, in the November 2026
Gabe I'd love for you to make videos on the big cases. I'm still processing how three "people" believe one executive has the right to use the mail service to interfere with a local election. And what that means for future elections.
I enjoyed your insightful article. You address it like a legal scholar and obviously tried hard to make it balanced-which I think you did. And you flirted with solutions-which is what I am interested in. If our system allows our president to violate existing laws with impunity, are we still sovereign? J Mel, Fixing America with J Mel
Very insightful analysis, with two qualifications.
As a legal realist, I can appreciate the framework's descriptive power. I am less confident of its predictive power, because it assumes the Justices are applying neutral principles of law at stake here. I don't think they are. I think each decides how the case should come out and then go searching for the text, precedents, and history that supports that view. Rosemary says: "Determining what people mean by their written words (past or present) is something we depend on every day in many contexts." To be sure, that's correct. The problem is that there are many sources of wisdom on the meaning of past or present words and the Justices necessarily have to discern which ones to credit and that's especially discretionary when applying originalism. I find it hilarious that originalist Justices liken using legislative history as finding friends at a cocktail party and then go to an older cocktail party to find friends to justify their originalist conclusions. I don't think we have an alternative to Justices and appellate judges deciding cases based on their guts and then finding support for their guts. What I resent is that their failure to be honest about it.
One minor refinement. On Slaughter and similar cases about removal of "independent" officials, Trump was merely benefiting from a longer term project, the Unitary Executive Theory, which asserts that restricting the president's removal power undermines his constitutionally granted "executive authority." That has been a key goal of the Federalist Society for decades, at least since Justice Scaliia's famous dissent in Morrison v. Olson. So, although Trump won the power, I'm less sure he would have won had Slaughter been the first case in the chipping away of independent agencies, rather than its culmination.
I find your analysis very interesting, enlightening even, if it is accurate (which I believe it is, at fist sight).
Not being american, however, I might have missed the part where you break into percentages your "compiled dataset of all 48 actions". I admit I sometimes (often ?) skipped over a paragrah here and there, when I did not know the case your were describing...
Could you add this information (percentages), in each green or red box of your drawing ? this way we could see whether the supreme court rulings ended up being against or in favour or Trump ? Or explain why it would be a silly idea to do that, maybe ?
In any case, it would be much appreciated.
And if the answer is already in your text, forgive me please and just answer "read better", which I shall do
I'm not sure simple percentages would be illuminating because the import or salience of the different Supreme Court actions is not at all the same. Some rulings by the Court are functionally the final word on whatever it is that the president is doing or trying to do; others though are not.
Agree with your assessment that some SC decisions are more impactful than others. Just for example..Trump vs United States giving a president almost total immunity for any actions opens the door for extensive nefarious actions if a president has no moral compass other than self-aggrandizement such as our current incumbent .
Well that's actually an additional, different, point from what I brought up.
I'm not sure that trying to divide the running scoreboard by dimensions which are inherently subjective, would end being effective.
I was suggesting a specific objective standard of legal impact to use, so as to improve the real-world salience of the exercise without opening up any cans of worms that readers could (and surely would) spiral into endless arguing over.
Terrific analysis, thank you.
Excellent analysis.
I would change one major thing. As Roberts said, "We don't have a Trump Court, a Biden court, etc." The justices are making decisions based on their theories and positions. Ex the court overruled Roe v Wade in 2022. Ex The court has said abortion pills can be mailed
Most of these judges have come through the Federalist Society, which, of course, is going to be very Conservative. The Federalist Society believes in originalism which is their arrogant intent to try to interpret someone's thoughts from 200 years ago. Again that is sure arrogance That is the approach the six conservatives generally try to take, not what the president thinks
Alito and Thomas has had the same approach during their entire tenures. Not only do they screw up interpretations but make things up as they go Much of Alito's dissent had absolutely no constitutional basis Steve Vladeck broke this down last night. We have always had justices like this
Arrogance is the quality of having an exaggerated sense of one’s own importance. Originalism is not a doctrine of arrogance. Determining what people mean by their written words (past or present) is something we depend on every day in many contexts. The opposite philosophy, “the living Constitution” is arrogant. Pursuant to that theory, nine living people decide what rules “the people” want to live by.
The Constitution can be amended. Some provisions need amendment. Our current political leaders don’t even try to amend the document even though the discussion alone would probably heal some of the rifts between partisans.
When you use the excuse of originalism to support your own ideas and writings, such as the Federalist Papers, don't support it, that is arrogance.
I don't have a problem with trying to use originalism, only distorting it to fit your ideas.
I am curios What provisions of the Constitution need to be amended
Second & Fourteenth
How would you change those amendments
Great explanation. Broken out this way the Supremes' decisions even seem to have a consistency that makes some sense, which gives me back a little more faith in them.
Relevant and necessary analysis. The average person would benefit greatly from this flow chart. Legalese broken down into these digestible “if this then that” formatting would help in dispelling a lot of the tribalism/polarization surrounding the Supreme Court
It's worth pointing out that the one big exception -- authority to fire -- is very likely constitutionally-correct.
For the last ~100 years we've been setting up allegedly "independent" executive-branch agencies, even though the constitution doesn't say anything about parts of the executive that are independent from the White House. Worse, the reason we want these agencies to be independent is that we have also given them the authority to make and adjudicate regulations, meaning these executive agencies effectively have legislative and judicial powers, albeit circumscribed by subject matter. The notion that parts of the executive get to make and adjudicate regulations is clearly unconstitutional.
The reason we did this is because the world got complicated enough that the constitutional structure didn't work very well. So, we made the necessary adjustments; creating agencies staffed with subject-matter experts in various fields to make, enforce and adjudicate regulations within those areas. To preserve the spirit of the constitutional separation of powers while violating the letter, we gave these agencies nominal independence, through both legislative orders and executive norms. Without that independence, the White House would obtain a collectively-incredible power to make, execute and adjudicate the rules that govern almost all facets of American life.
What we didn't do was to amend the constitution to make this new approach legal. Instead, we looked the other way.
Justice Sotomayor explained this all quite clearly in the oral arguments in the Slaughter case. Her position was that even though the letter of the constitution didn't allow this structure, the spirit of the constitution required us to continue looking the other way.
But, "we have to keep ignoring the law" is not a great legal argument, so the finding that the president does, indeed, have the authority to fire executive branch officials isn't just constitutionally defensible, the contrary position is actually rather hard to defend.
In order to protect the country from effectively losing separation of powers and becoming an elective monarchy, we need to go back to court and get SCOTUS to enforce the constitutional order, returning all lawmaking authority to Congress and all judicial authority to the judicial branch.
This will break the federal government and arbitrarily deregulate almost everything, since Congress mostly hasn't made regulations for a long time, instead directing the appropriate agencies to make them.
Either that or we need to amend the constitution to make the 20th-century executive branch architecture constitutionally valid. But we probably can't successfully do that without first proving to the voters that returning to a 19th-century federal structure in the 21st century is very bad, so step 1 is going to be to complete Trump's demolition of the modern executive branch.
In Friday’s opinion, which was released to reporters shortly before 6 p.m. EDT, the court emphasized that the federal district and appeals courts “should not enjoin or otherwise prohibit the use of the” map enacted in 2022, which is currently in use in voting already underway, “in the 2026 congressional election in Missouri.” Moreover, the court added, those courts “should not order or otherwise require Missouri to use the” new map “in the 2026 congressional election in Missouri.”
In Friday’s opinion, which was released to reporters shortly before 6 p.m. EDT, the court emphasized that the federal district and appeals courts “should not enjoin or otherwise prohibit the use of the” map enacted in 2022, which is currently in use in voting already underway, “in the 2026 congressional election in Missouri.” Moreover, the court added, those courts “should not order or otherwise require Missouri to use the” new map “in the 2026 congressional election in Missouri.”
SCOTUSblog
https://www.scotusblog.com
For the third time, Supreme Court declines to allow Missouri to use congressional map expected to aid Republicans
22 hours ago — Supreme Court on Friday declined to allow Missouri to use a new congressional map, intended to benefit Republicans, in the November 2026
Brilliant. Well done, Gabe.
Keep up the great work.
Gabe I'd love for you to make videos on the big cases. I'm still processing how three "people" believe one executive has the right to use the mail service to interfere with a local election. And what that means for future elections.
I enjoyed your insightful article. You address it like a legal scholar and obviously tried hard to make it balanced-which I think you did. And you flirted with solutions-which is what I am interested in. If our system allows our president to violate existing laws with impunity, are we still sovereign? J Mel, Fixing America with J Mel
Very insightful analysis, with two qualifications.
As a legal realist, I can appreciate the framework's descriptive power. I am less confident of its predictive power, because it assumes the Justices are applying neutral principles of law at stake here. I don't think they are. I think each decides how the case should come out and then go searching for the text, precedents, and history that supports that view. Rosemary says: "Determining what people mean by their written words (past or present) is something we depend on every day in many contexts." To be sure, that's correct. The problem is that there are many sources of wisdom on the meaning of past or present words and the Justices necessarily have to discern which ones to credit and that's especially discretionary when applying originalism. I find it hilarious that originalist Justices liken using legislative history as finding friends at a cocktail party and then go to an older cocktail party to find friends to justify their originalist conclusions. I don't think we have an alternative to Justices and appellate judges deciding cases based on their guts and then finding support for their guts. What I resent is that their failure to be honest about it.
One minor refinement. On Slaughter and similar cases about removal of "independent" officials, Trump was merely benefiting from a longer term project, the Unitary Executive Theory, which asserts that restricting the president's removal power undermines his constitutionally granted "executive authority." That has been a key goal of the Federalist Society for decades, at least since Justice Scaliia's famous dissent in Morrison v. Olson. So, although Trump won the power, I'm less sure he would have won had Slaughter been the first case in the chipping away of independent agencies, rather than its culmination.
Excellent analysis squared!
" blame the court for treating Trump like any other president, rather than as the emergency many liberals view him to be. "
I am finding many conservatives are beginning to view him (and this administration) as an emergency.
Does this square with what you are seeing?
I find your analysis very interesting, enlightening even, if it is accurate (which I believe it is, at fist sight).
Not being american, however, I might have missed the part where you break into percentages your "compiled dataset of all 48 actions". I admit I sometimes (often ?) skipped over a paragrah here and there, when I did not know the case your were describing...
Could you add this information (percentages), in each green or red box of your drawing ? this way we could see whether the supreme court rulings ended up being against or in favour or Trump ? Or explain why it would be a silly idea to do that, maybe ?
In any case, it would be much appreciated.
And if the answer is already in your text, forgive me please and just answer "read better", which I shall do
I'm not sure simple percentages would be illuminating because the import or salience of the different Supreme Court actions is not at all the same. Some rulings by the Court are functionally the final word on whatever it is that the president is doing or trying to do; others though are not.
Agree with your assessment that some SC decisions are more impactful than others. Just for example..Trump vs United States giving a president almost total immunity for any actions opens the door for extensive nefarious actions if a president has no moral compass other than self-aggrandizement such as our current incumbent .
Well that's actually an additional, different, point from what I brought up.
I'm not sure that trying to divide the running scoreboard by dimensions which are inherently subjective, would end being effective.
I was suggesting a specific objective standard of legal impact to use, so as to improve the real-world salience of the exercise without opening up any cans of worms that readers could (and surely would) spiral into endless arguing over.
I think there's one of the previous posts where he has a full table of the cases (there are few enough that it is in raw numbers not percentages).