Advisory Opinions - Blaming the Judiciary

Episode Date: February 3, 2026

Sarah Isgur and David French are hosted by the Rockefeller Center for Public Policy and Social Sciences at Dartmouth to discuss the United States at 250 and where the Supreme Court stands today.Pre-order Sarah’s book: Last Branch Standing: A Potentially Surprising, Occasionally Witty Journey Inside Today's Supreme CourtThe Agenda:—The Swing Justice era of the court is the exception—Thank you Justice Kagan for free tampons—Legal societies: students vs. professors—Fringe theories and Unitary Executive Power—Trigger words for David French: "coequal branches of government"—Laws of war and Greenland—Process girl in an outcome world—Audience questions Learn more about your ad choices. Visit megaphone.fm/adchoices

Ready? I was born ready. Welcome to advisory opinions. I'm Sarah Isger. That's David French. And we've got a special episode for you today, live from Dartmouth College's Law and Democracy, the United States at 250 speaker series. We'll be interviewed by Professor Herschel Nockelis, Senior Associate Director and Senior Policy Fellow at the Nelson A. Rockefeller Center for Public Policy and the Social Sciences at Dartmouth, delightfully known as Rocky. and Professor Benjamin Valentino Associate Dean for the Social Sciences.

I mean, we get through a lot. The questions from the students are amazing. Think of this as a, well, United States at 250, big picture. Where are we on the Supreme Court in 2026? Hope you enjoy. Do you love the dispatch is journalism, but don't have time to read it all? We hear this pretty frequently from our members, which is why I'm very excited to introduce dispatch voiced,

a member's only podcast feed that helps you keep up with our work on your schedule. Here's how it works. We've built two feeds, editors' picks for our biggest stories and the morning dispatch for our daily newsletter, powered by realistic AI voice models created by 11 labs. These high-quality audio versions are delivered right to your favorite podcast player. Whether you're commuting at the gym, out grocery shopping, even walking the dog, dispatch voice fits our reporting into your schedule. Jonah Goldberg's latest column?

The biggest news from Capitol Hill, our most colorful cultural analysis. Now it's all available in your podcast feed, ready when you are. Most episodes use advanced AI narration that sounds remarkably like a professional audiobook reader and will occasionally feature authors reading their own work too.

Ready to take the dispatch on the go, members can set up their feed on their account page at the dispatch.com. Not a member yet, start listening today when you join the dispatch. Let me start by just kind of asking you to set the table about the Supreme Court.

We all know that we've got six appointees from Republican presidents and three from Democratic presidents, but not every decision is the six three decision. And I hear you guys talk about this a lot on the podcast. So what are some different ways to think about

you know, the divisions on the court. Sometimes I hear you guys talk about pods. There are different pods on the court. So what's a useful way to think about how the court falls along different lines? Well, you've got the book coming out, so why don't you start? Yeah, so I'm going to start with just some statistics, I guess. We have talked about the court being more like a 333 court. It is not to say that that is always right or the perfect way to think about it, but it is far a better paradigm to think about it than 6-3. So last term, actually, should I start with the AI thing? Because I think that's kind of fun. Yeah, yeah, that's great. So I put all the briefs from last term into my favorite AI and asked it to predict the outcome.

And it predicted 12% would be unanimous and 42% would be decided along 6-3 ideological lines. And I love that because it is actually the opposite. Fifteen percent of cases from last term, were decided along ideological lines. 46%, I might get that, it's between 40 and 50, were unanimous. And in fact, 15% were decided with liberals, all the liberals in dissent. But 15% were also decided with only conservatives in dissent and all the liberals in the majority. It was exactly the same number. And so when you hear people talk about a 6-3 court, they're just not very good at predicting the outcomes of the cases.

and we often hear from people as pushback to that, which I totally understand. Yeah, but what about the big cases? If you're counting all of these like nothing burger cases about arbitration and shit I don't care about, then that could mislead you with the numbers. But let me ask you how many of the pundits you're listening to define what the big cases are at the beginning of the term? Instead of defining what the big cases are when they know the outcome and the outcome is 6-3. And I have all these examples where the Biden administration wins.

against the state of Texas and immigration, and it was unanimous. That was a really big case when they said they were going to hear it. Never heard about that case again, did you? But you heard a lot about the student loan case, which was decided 6-3. Same thing with V. Rights Act, Alan v. Milligan, right? They were going to destroy Section 2. Everyone said this was the biggest case of the term. Oh, they upheld Section 2.

We never heard about that case again. So beware pundits that define the big cases by which cases were decided 6-3 because it becomes a self-fulfilling prophecy. And then I love talking about Gorsuch and Kavanaugh because they are absolute twins. Their mothers were both high-powered women at a time where that was incredibly unusual. They grow up blocks from each other. They go to the same high school. They clerk for the Supreme Court the same year for the same justice,

and they are appointed to the Supreme Court by the same president with 18 months of each other. These guys literally could not be more identical. And they're considered two very conservative justices on the court. They're part of that, you know, 6-3 monolithic partisan court. How many times were they on the same side last term? 50-50. 50% of the time Gorsuch and Kavanaugh were on opposite sides of the case. So you just can't think of the six as being this monolithic right-wing vote

and then a monolithic left-wing vote, especially with Justice Kagan breaking from her three-pod so often. Just talking about philosophy and temperament, and I think those numbers should tell the story here. But if you look at it, and one of the things that is frustrating to me talking about the court is people are so locked into the 6-3 framework that contrary evidence just washes over them. So, for example, you can say accurately that the modern American administration that had the worst record at the Supreme Court in modern American history was, drum roll please, Trump in his

first term. He had a terrible record at the Supreme Court, worse than Biden, worse than Obama. First president to ever be under 50 percent. First president to ever be under 50 percent. And the whole time his lawyers were arguing in front of a majority Republican appointed court. And then people then immediately say, well, what about Trump the United States? I'm like, okay, I'm with you on Trump of the United States. Don't start me on that. But is the metric that the court is always against me, or is the metric that whenever the court disagrees with me, the court is wrong? And I'm going to not like the court. Well, that can't be our metric for the health of a branch of government. So the way I put it like this is, look, the

Justices are humans. They're going to be pulled by their experience and their background and their preferences, and they try to consciously be aware of that and control for that. But as human beings are going to have different judicial philosophies and also they're going to have different judicial temperaments. So, for example, different philosophies easy to describe. Are you an originalist or are you not an originalist? And one of the ways that I measure judicial integrity is, are you faithful to your philosophy? Or do you depart from your philosophy for reasons related to outcomes? But if you're faithful to your philosophy, and it's a solid judicial philosophy, I'm respecting your judicial integrity. But there's another measure that's what I would call judicial temperament. And Justice Alito

wrote a really interesting piece in the Wall Street Journal or was interviewed in the journal. I can't remember if he wrote it or if he interviewed, but he was talking about how some judges look more to the consequences of their rulings than others. And that's an aspect of judicial temperament. So some judges like incremental rulings consistent with their philosophy. Other justices are more like we call Justice Gorsuch the Yolo Justice. He gave basically handed control over most of the state of Oklahoma, away from the state of Oklahoma, to the Native American tribes of Oklahoma that had had a lot of that control wrongly rested from them. And he was just like, y'all work that out. And so some justices are incremental, some justices are more dramatic.

But again, incrementalist versus a little bit more aggressive, that's not an integrity issue. That's a temperament issue. That's a philosophy issue. And so one of the reasons why I like the title of Sarah's book so much, Last Branch Standing, is because I actually do believe in our three branches of government right now, the judiciary is the last branch really standing. The presidency has broken through all of its bounds. Congress has receded into a ose of invertebrates. And so the Supreme Court's sitting there going, why can't anybody do their job here? And now, you may not, you may not like all their rulings. You're not going to like all their rulings. I don't like all their rulings. But that is not the measure of the health of a branch of government. And so I have this fun,

a good friend of mine who started listening to our podcast. He's not a lawyer, but I love this. I love this. He told me when we were at lunch the other day, he said, ever since I started listening to advisory opinions, I now listen to Supreme Court oral arguments. Why would you do that? You nerd. But the answer was fascinating. He said, I'm so hungry. for civil discourse and civil argumentation. And Supreme Court oral arguments are nine super smart people questioning a super smart advocate in a way that is civil, that is decent, and totally divorced from anything you're going to see online

or anything you're going to see on cable news. And it is actually quite heartening. I didn't tell you this. We got an email from the podcast this afternoon or this morning, I guess, when I was flying. And I'd gone back and forth with this guy because he was really mad about our podcast where we basically said that federal law enforcement officers were not going to be held accountable for what's happened in Minneapolis.

And, you know, I'm sort of like, well, should isn't will and, you know, walking through that. And we go back and forth and finally he emails back this morning and says, I just realized something. Congress could have done something about this. The president could have done something about this. And we're blaming the judiciary because that's where it lands.

Instead of blaming the other branches because we don't see that they should have done something about it. Right. Exactly. We'll dive into a host of domestic and international law questions in a moment, including the ICE question. But just one question before that is about how we got to the current court. And so the standard story is that, you know, the Federal Society founded in 1982 sort of had this five-decade-long project, which reaches its success in the current 6th 3 Republican Majority Court.

So this raises a few questions. One, why did it take the left 20 years after the Federalist Society to start the American Constitution Society? And why has Fed Sock been so much more successful than ACS? I have so many answers to this. Okay. How much time you got? Let's do this. So in the wake of FDR dying, the court is actually nine people appointed by Democratic presidents.

And then it's going to swing back to Republicans to the point that in the early 90s for several years, the court was actually, I believe, 8-1. Republican appointees. The court has only been 5'4 in my lifetime for a very short period between the appointment of Justice Kagan and Justice Gorsuch. By the way, shout out to Justice Kagan because I went to your women's bathroom and there's free tampons and you probably don't know. This is like that scene in Devil Wears Prada where she's like, you think you're wearing a blue gap sweater, but actually you don't know the 10 years. Justice Kagan started the free tampons in the bathroom when she became dean of Harvard Law School. That was her revolutionary thing.

Yeah, Justice Kane. Damn right. We used to put on this skin. We would make that a huge part of the skit every year. It's like pre-tampons in the bathroom. This is huge. Anyway, so, that's all to say. The court is not ever really been this like five, four each side feels that they're

just fighting over the swing justice. In fact, the swing justice era of the court is really the exception. But it happens to be the exception that we all live. through. And so we see it, you know, as an outsized thing. The war in court and the excesses of the Warren court and that very liberal majority that was on the court post-FDR, you can sort of split into two categories. We'll call them progressivism, this idea of social change through the court instead of through the political systems or through the amendment process. It basically kills off the amendment process as we know it at that point, because as LBJ said, it's a lot easier to put Justice Douglas

on the court than it is to amend the Constitution. That's a really bad way to run a railroad in a Republican democracy. The other side is what I'll call liberalism. That's like the administrative state, thinking of government differently. Congress is too long. It takes too much compromise and log rolling. Why don't we do everything to the presidency? What a cool idea. And eventually, of course, not only is it easier to appoint Justice Douglas, it's a lot easier to sign an executive order than it is to actually passed legislation in Congress. So we also kill off Congress. The Federalist Society starts as an answer to that.

They're, of course, wildly in the minority. And so I think the genius of it is that instead of saying, we want to appoint justices that will do the opposite of this, what they say is we're going to appoint justices that have a different process, originalism, textualism, et cetera, and that may or may not come out the opposite way. ACS, American Constitution Society, which, as you said, was started 20 years later, is actually not,

the equivalent of the Federalist Society. The Federalist Society was started by law students across three different law schools. It's very, like, ground up. ACS was started by law professors. It never caught on the same way because there wasn't the hunger. Do you know what you call a law school

with a liberal student group? A law school. Like, there just wasn't a need for it in the way that the Federalist Society became this band of brothers. I lay this down in the book that from the most, from the moment I joined Fed Sock, my one-all year, all of my jobs came from people I met in the first few months.

And they would just sort of like grab me and be like, and now you will do this job. And now you will be here. And they controlled my whole, like, professional life. And of my neighbors where I currently live, several of us are Fed Sock marriages, including my own. So there are literally Fed Sock babies running around. I just don't think there are ACS babies because, again, there wasn't that sense that there was a put-upon minority. Now, what gets really interesting about this story is now they're the majority. And now it is much harder, I think, for the Federalist Society as an organization to have the same grasp on students, in part because without the filibuster, they are no longer the mediator, the translator for administrations.

There's no filibuster so people can just say whatever wackadoo thing they think and the administration can go find them. And when you're the majority on the court, the questions get a lot harder. You're not writing dissents. They're like, originalism, pew, pew, pew. It's like, oh, yeah, but this just got really hard. What if the originalism is contradictory? What exactly history are we looking for? Are we looking at the ratification of the Constitution?

Or when the 14th Amendment is ratified and we then incorporate the Bill of Rights against the states? Well, the 14th Amendment did incorporate the Bill of Rights against the states, but we didn't recognize that for another 100 years. So do we look then? These questions get hard. And the Federalist Society, I think it's like a fun debating society to debate those questions now. But it's not the cohesive. We're all in the same team because we fit in a phone booth and we hate Earl Warren.

Also, one thing that's happened with the Federalist Society is when I was in the Federalist Society or in 1991 a long time ago, there was no career advantage to that at all. Now there's monumental career advantage. So you're getting some people actually believe in the ethos and the ideas of the Federalist society, but also people are just very careerist. They want the end on the clerkships, et cetera. But I would say, in addition to what Sarah said, the Federalist Society had two huge advantages when it was formed. Number one, it had a coherent philosophy that helped it win the right-wing civil war over

judicial philosophy, and it had an ideal opponent. And so in the coherent philosophy, it was, text, it was textualism, originalism. We're not focused on outcomes. We're focused on judges' calling sort of balls and strikes according to a coherent philosophy that is easy to explain. That was overwhelming in a lot of the internal right-wing fights over judicial philosophy, because it's not the case that right-wing judicial philosophy has always been originalist. That is not the case. When I was practicing, especially early, sometimes even though I would be representing, say, a conservative professor facing a free speech issue or a conservative student group facing

exclusion from campus, sometimes I actually did not want prior Republican appointed judges because they were so statist in their outlook. They were incredibly focused on defending the prerogative of state power. And that used to be a version of right wing or conservative jurisprudence. So Fed Sock, coherent originalist argument that won an internal fight. And then they answer about the ACS, like Sarah said, law schools were overwhelmingly on one side. And so Fed Sox did something very smart. They focused on debate. And so what Fed Sock essentially said was, you don't hear an exchange of ideas in your law school education. You'll hear an exchange of ideas at Fed Sock. And so for 10 years of my life, one of the things that I would do

is I would go, I would set up, I would block out space on my calendar and I would go around the country doing Fed Sock debates. And I'd always have a professor. from the other side and we'd have a very congenial conversation. And students would come up afterwards and say, this is the first real dialogue, the first real debate. This is the very first time, they would say to me, for example, this is the very first time I've heard a critique of Roe v. Wade on this campus. What?

Like, what are you guys doing as a law school if your students can go through part of their law school education and not hear a coherent critique of the most controversial Supreme Court. vision in 50 years. And so I think that Fed Sock took advantage of, in many ways, the closed nature of the illegal academy was a giant blessing in many ways to Fed Sock. And the interesting thing is, I think the legal profession is now more open. Law schools are more open to having conservative faculty members. And I do wonder if that's going to also do something to Fed Sock, that it's not sort of that, as you're saying, that band of brothers and sisters sort of sense that you have,

Now, I will say my little group of Fed Sock, we were no band of brothers and sisters. It was like 12 of us. And how many here have seen Monty Python's Life of Brian? A few people? Okay, you need to see this because there's this moment where they're talking about factions. And he goes, is this the people's front of Judea? No, it's the Judean people's front. And that's what we were.

We were very divided, the 12 of us, having these ferocious arguments that nobody was listening to. but I do think as Fed Sock developed, it became sort of this band of brothers and sisters, and a lot of that then has this perpetual. Anytime you go through a formative experience with another human being, you create a bond. And a lot of us who were conservative in the academy, we formed a bond with each other because it was not, I got shouted down. I won't say it was threatened with death by my classmates, but when they say something like, you go die, you effing fascist, we'll call that a death asses.

I'm not going to kill you, but I hope somebody does. And so, you know, when you go through something like that and you have a few people around you who are willing to like listen to you and it creates a bond. And so I think Fed Sock is enjoying a lot of the fruit of those many years. But as Sarah said, the hard stuff is to come because originalism is not a plug and play, create one answer out of every situation. It is contentious and debatable and arguable. And we do that all the time on the podcast.

And now that the right also feels like they are in the driver's seat because of Trump, they literally don't want to be a process-oriented thing anymore. They want to be outcome-oriented. And so they get, you know, Scalia used to say, if you're a judge who agrees with every decision you make, you're a bad judge. On the right now, Scalia and Reagan are kind of out. They're like, you know, as Josh Hawley said from the Senate floor, if this is what we have been fighting for with originalism,

we haven't been fighting for very much. Basically, like, I want the outcomes that I want. Common good constitutionalism, this idea, like, if we're ascendant, F process. And that's always the problem with the majority. The majority doesn't ever want process. The minority does. And that's why we should all want process.

Because you don't know when you're going to be in the majority or the minority. You don't know why this is hard. It's very hard. In a pluralistic country, we still haven't figured that one out. Do you love the dispatches journalism but don't have time to read it all? We hear this pretty frequently from our members, which is why I'm very excited to introduce Dispatch Voiced, a member's only podcast feed that helps you keep up with our work on your schedule.

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Not a member yet? Start listening today when you join the dispatch. Let's get into some of the actual debates in front of the court, ones that affect the lives of everybody in this room and in the country. And I think, you know, if there are two words that come up more frequently in these questions than any other, it's unitary executive maybe. I haven't done the, you know, Google Trends graph on this, but I suspect if you did, you would see an enormous kind of hockey stick spike in the last 12 months for those two words together. A theory that, you know, I don't know, 10 years ago was, I don't want to say fringe, but certainly not nearly having the place in. legal debates that it's having today. So first, just for those who haven't been following the podcast

or America Politics, you know, what's your view of what this theory says? How should we understand it? And then secondly, I think, you know, for those who propose it, there is this dilemma, this cliff of just how far the unitary executive goes, where almost everybody believes on the other side of the Cliff is the Fed for some reason and the executive is unitary right up until we talk about the Federal Reserve, but I've personally never understood how you get to have one without the other. And so I'm curious for your views on that and whether there's any other logical place to draw a line within a unitary executive that holds some parts of the executive outside of a complete control of the president. So let me sort of start with a 30,000 foot view. So the 30,000,

and foot view of the unitary executive is rooted in the first sentence of article two, which says the executive power is in, resides in a president of the United States. So in essence, the unitary executive theory, if you're going to distill it down to one sentence or phrase, it is the president is the executive branch. So that's the, the president is the branch. And so therefore, everyone within the branch is going to answer to the president. And so now, that does not mean there's soft and hard versions of unitary executive, like one version, the one I'm more inclined towards is that that means that the president has control over the policymaking individuals within the executive branch, like your attorney general, like your heads of agencies, et cetera.

But not that the president can hire and fire everyone from your line U.S. attorney to your janitor at the VA building at will, otherwise your gilded age spoil system. But the president is able to direct the executive branch. Now, what trips up a lot of people about that is that they're looking at that through the prism of the modern presidency, which has taken up so much power that when you say unitary executive, it almost sounds like a king of England, because that means the majority of the power of the whole government resides in a person. That is not unitary executive. That was if you combine unitary executive with the wreckage we've created of Congress right now. And so if you actually take a step back and you look at Supreme Court jurisprudence around the executive and separation of powers, what you would see is the Supreme Court is moving towards a scenario where the executive, the president has more control over a diminished executive branch. In other words, you can't unilaterally cancel student loans. You can't unilaterally change the census. You can't,

maybe, we'll find out, unilaterally engage in worldwide tariffing. You can't, deploy the National Guard to Illinois in violation of statute. So you would say Unitary Executive properly understood is the president has control over the policy making instruments, the executive branch, but the executive branch needs to get back in its freaking box. You know, as a free speech guy, I hate the concept of trigger warnings. Hate it. I hate the idea that words are violence.

I hate that idea. But there is one area where trigger warnings should, exist and words are actually violence. And that is, if you ever say this phrase around me, just prep yourself, co-equal branches of government. No, it's Article I for reason. Think about this in your life, guys. If you work for a company and you cannot get paid unless a person says you get your salary and that same person can fire you, what do you call them? Boss, okay, you call it doesn't mean the boss can't be checked, that the boss has unlimited power. But Article 1, not a dime can be spent without the legislature,

and the legislature can fire everyone in the judicial branch and the executive branch, if it was so wished, through impeachment and conviction. And think about all of that power that has just, they have just given it away, give it away, giving it away. I guess because those hits on Fox and MSNBC are just so fun compared to legislating and taking actual risks and stands, but this is where we are. I think you cannot have the unitary executive conversation. without the legislative conversation beside it.

I think that's a pretty good answer. A related question then about the expansion of executive power and sort of whiplash across administrations. So you could think about either the immigration issue or the Title IX issue on college campuses. Both of these, under Biden and Trump, with no large act of Congress, no large court decision, have basically just like turned full 180.

And so I'm wondering what that tells us about the administrative state, democratic governance, more generally. I want to tell you what it says about all of us. Because at some point, we have to blame ourselves. And in particular, the activist organizations that are supposed to be advocating for these changes. By the way, I actually think the best example of this that for some reason just really gets under my skin is the clean power plan that Obama had in his administration. Now, in fairness, or rather to expose my own bias, I do. blame President Obama for starting this. I think each administration has gotten worse since then, so we're at the sort of pinnacle of bad behavior by the president. But Barack Obama was trying

to get immigration reform through Congress, and he ran into Republicans in the House. And they were like, we don't want to do this deal. And I've gotten pushback from people who, again, were in Congress at the time, and they were like, you know, it wasn't going to happen. The Republicans wanted to just say no to Obama. And I was like, I've got to tell you, in my experience, there's always something you can't say no to. But President Obama instead gave this very famous several weeks of speeches where he said, I have a pen and a phone. And if Congress won't do what I want, I will do these things through executive action.

And then in 2014, they had the year of executive action. And he did 88 executive actions. You can find this all on the website. Anyway, the Clean Power Plan is going to be one of these executive actions where he's going to address climate change, not through Congress, but through executive order. Donald Trump, of course, comes into office. Oh, let me back up. Every climate change activist was like,

E, Rose Garden, love this. I got invited to the White House. Donald Trump comes into office and immediately gets rid of Obama's clean power plan. And all of the activists on the other side were like, Yay, Rose Garden, Trump fixed it. And then Joe Biden comes into office. He reverses that. Doesn't go back to the Obama Clean Power Plan.

he has his own clean power plan. Activists. Wee, Rose Garden, I'm having so much fun. We cannot fix climate change in four-year increments, no matter how much you care about it. People also, on the flip side, cannot drill, cannot provide the kind of infrastructure and invest the tens of millions of dollars

if they think every four years it's going to be banned or they don't know what's going to happen next. So both sides activists have absolutely lost in this issue. And I don't understand why when Joe Biden, for instance, had said very publicly in the campaign and in the early months of his presidency, I cannot do student loan debt forgiveness without Congress, went to Congress and was like, can we do student loan debt forgiveness? And they were like, well, I don't think so. And he was like, okay, wasn't like, I'll give you border security or I'll cut, I mean,

something that Republicans would want, for instance, again, make them a deal they can't say no to, that they can't tell their constituents that they turned away. And instead, He was like, executive order. I know this is not going to fly at the courts. But you know what? Congress didn't have to take a hard vote. They didn't have to compromise on anything. They didn't get primaried by someone who would be mad at them for compromising.

The president had all the activists back in the Rose Garden cheering him on about how great it was that he did this thing. And the administration and members of Congress knew who would get blamed in the end. Not them. Not the president. the court. They knew the court would strike it down. They wanted the court to strike it down because then they're the heavies. They're mean mommy. And as a mean mommy, that's just not a very nice way to run your family. I think that's so well said. And I'll also say this. Think about the truly consequential policy changes that have really affected all of our lives. Social security.

There's maybe a person or two in this room who is maybe eligible for Social Security, just looking out. If it was Social Security executive order, do we have Social Security? Medicare. If it's Medicare executive order, or the regulation establishing Medicare, do we have it today? The Civil Rights Act. Civil Rights Act. The voting rights acts. I mean, come on.

And so what you have is a situation now, and this is the other thing that happens, because everything is vaporware now, that I get my policy so long as I have the president, what does that do? It raises the stakes of the presidential race to an existential level so that I either have the border security I want or not, depending on the president. I either have the health care policy or want, depending on the president, the climate policy I want or not, depending on the president. So every four years, everything you care about comes up for this vote. And oh, by the way, about 75% of us don't actually live in a state where your vote really matters, okay? So here you have all of this power concentrated in a president that only about 25% of us truly select. That is not a stable way to run a republic.

And I will tell you this, students in here, and also, you know, lifelong learners, you're all lifelong learners. Read more the anti-federalists. Okay, a lot of them, they're not popular because they're the losers in the debate with the federalists, not completely, but so, but they saw this coming. They saw it. You know, one of my favorite, my favorite Annie Federalist, I don't think anyone knows who it is. Old wig number five. Sarah knows. An old wig number five. All of you who are thinking about starting your own bourbon label or a garage band students. I'm just saying, an old wig. Great name. Yes. And he said, you know, several things. He highlighted the pardon power. He and then, but he said something interesting that I think is really important. He says,

the presidency was actually in the 1787 Constitution, was basically designed for a one man, George Washington. And George Washington was a person of restraint in his exercise of power, so they trusted him with it. And they gave him a lot of power. And you read an old wig, and he says, The chances that we're going to always be run by George Washington's are about one and a hundred million.

There's this phrase in scripture that there arose of Pharaoh who knew not Joseph, in other words, who forgot all the wonderful contributions of the Israelites to Egyptian society, and he enslaved them. Well, there has arisen a president who knew not Washington. And when that occurs, the current constitution plus the pattern and practice of Congress is such that we are now at the mercy of that president for the health of our republic, and that was never, never the intended structure. We're getting close to the time and we want to make sure we include the audience, but I'm an international relations scholar and all my colleagues would yell at me if I didn't ask at least one international law type question.

And surprise, surprise, those have been coming up, too, over the last year. So I'm going to ask one of each of you. And the first one's kind of a combo domestic international law. So that will go to Sarah. and then I'll ask one. That's David about something different that's more purely international. So the first is, in a lot of the debates

that we've been having, the question about what counts as a national security emergency, an invasion, an attack, has been critical. And the question has been before the courts, how much should the court involve itself in determining whether something actually qualifies in a kind of factual way as one of those things, and how much should it defer to the executive when the president says, this is a national security, you know, the trade imbalance is a national security emergency.

Some guys in boats smuggling drugs, not even directly into the United States, counts as an attack on the United States. You know, Trenda Agua is an invasion of the United States. So far, I don't think we've really had an answer to this. at what point can the court say, no, the plain reading of the word invasion does not include that. So I'm curious where you think that line falls, since it's critical to so many of the decisions we're facing right now. So I actually think at the heart of this question is one of my favorite things that people misunderstand about the Supreme Court, which is it is very rare that the Supreme Court is directly answering a public policy question.

question for the United States. What the Supreme Court is almost always answering is who decides what that public policy is going to be. Is it a super majority? That has to be through the amendment process in which minority rights are protected against the majority of Americans. We let criminal defendants free.

That's not a very majority thing to do. If we let the majority vote, they would say, like, no, no, that guy definitely is a murderer. Like, I don't really care if he got his lawyer or not. Our Bill of Rights is all about. who decides, not the majority. Who decides? Is it Congress? Can Congress give away that power to the president

to define an emergency? Or because they are Article I, because they are the legislative power, there's certain things that even if they wanted to, powers they can't give away to the president. So who decides, is it Congress? Or who decides, can the president acting alone decide this? And it's not just this question of the Alien Enemies Act,

It's also the question of birthright citizenship. And this argument, which they haven't scheduled yet, will either be in March or April. And I really like this case, because it is such a distillation of the Who Decides question, can the president acting alone define what the 14th Amendment means? Can the president with Congress define what the 14th Amendment means? Or do the courts, because it was a supermajority,

define what the 14th Amendment means. It's the purest who decides question of all time. I'm super pumped. They're definitely going to decide that the president acting alone can't do it and leave the rest of those questions for another day. If Congress wants to pass birthright citizenship, like be our guest, come back and let us know.

We'll be just holding our breaths. So on Alien Enemies Act, the Fifth Circuit just sat on Bonk this week to argue about that question, who decides and whether Congress could give away that power, whether Congress did give away that power. But it really is at the heart of all of this. It's at the heart of trans participation in

sports. It's at the heart of gun-related questions. Can state governments decide or did a supermajority decide that in the Second Amendment? So I guess I would just, I'm not, you know, obviously answering your Alien Enemies Act question because it's a hard one and it's percolating. but if you will think of those questions before the Supreme Court in that way, that almost no matter what the topic is, the question is who decides, I think you will have, well, more fun might not be the right answer, because that may just be me, but you will have a better understanding of what their job is. David, it looks like this week we're not invading Greenland.

Last I checked. I mean, it's only Thursday, right? But in the course of the military actions that the Trump administration has taken over the last year, there have been frequent questions about the ability, requirement of uniform military to disobey orders that they've been given if those orders are manifestly illegal. And I think there's a lot of agreement on when this comes to the enlisted soldier who's been told to execute civilians, and clear contravention of international law. No, you don't get to do that,

and you can say, I'm not following that illegal order. Less clear is the question about launching a war that itself might violate international law, the decision to go to war against international law. So if Trump were to order, you know, not come to launch an invasion of Greenland without any pretense of an attack on the United States, which many people would say violates a variety of different international treaties that we belong to.

What rights do our high-ranking, you know, our chairman of the Joint Chiefs of Staff, our Northcom commander have to say, nope, I'm not going to follow that manifestly illegal order? Great question. Okay, so the bottom line is we kind of overstate this issue of, like, you don't have to follow an illegal order. The rule is not that you get to be a barracks lawyer and say, I have decided, I've done my own research, and I've determined this is an unlawful war, and I'm not going to participate. So that is not something that individual soldiers are allowed to do.

However, if it's a situation like United States v. Callie, William Callie, Lieutenant Callie, who was one of the officers at the Milai Massacre in Vietnam, it was very clear. It was manifestly unlawful to have received any order to shoot women and children, right? That is just manifestly unlawful as plainly murder. He had no obligation to follow that order. In fact, he had an obligation to defy it. It's a weird, ambiguous situation when it's a decision to go to war. So essentially, if you look at the law of war, there's several phases.

There's just ad bellum, just in bellow, and just post-bellum. So just ad-bellum is the legal justification for war. Just in-bellum is the legal conduct in war, and just post-bellum is legal. treatment of prisoners, occupations, etc. And the way international law works is if it is a decision to go to war, the legal responsibility rests with the sovereign. Okay. Now, what does that mean? What sovereign mean? Does that mean that only Vladimir Putin can be indicted? Actually, probably not. It also means that, as the Nuremberg trials indicate, you can go with senior commanders and senior leaders.

All right. Now, we didn't prosecute colonels and majors in the Verimacht unless they had participated in manifestly unlawful atrocities. So here's the deal. The United States, right now, if it decides to go to war against Greenland, I do think, to go to war against Denmark, I do think under the Uniform Code of Military Justice, senior commanders have the right and obligation to say no. Okay, there is no, there is no credible legal argument than an armed attack. on Denmark under these conditions meets the laws of war. None. It does not exist. Okay. And so in that circumstance, you could have something like the International Criminal Court, especially when our military activities take place on a soil of a nation that has signed the Rome statute, that the International Criminal Court could indict Donald Trump. It could indict it could indict Pete Hegesith. And that in a future time and a future history, if you had an American public that rejected, thoroughly rejected, all of this and an American president said we're lifting the shield of American power from

protecting these people, they could be theoretically tried. And so I do think that that is an actual, that is an actual on the table reality that, you know, there was a, and I forget his name, but there's a Catholic Archbishop who came out recently, right, and they'll build up to Denmark, the invasion, and he, not just any archbishop, but works with military chaplain, said, this is, This is where soldiers could say no. And it sounds weird, and it sounds almost traitorous or insubordinate to say that in a way, because I've never considered the possibility that an American president would launch a Putin-esque war of aggression, right? But there's zero distinction, zero distinction between Putin's armed attack on Ukraine and if Trump chose an armed attack on Denmark.

No distinction. because what Putin is doing is he said he's taken the Klosvitzian view, which is war is the extension of policy by other means. It's in the national interest to seize Ukraine. We've not seized Ukraine through diplomatic or subterfuge or espionage ways. We're going to see or through economic pressure. We're going to seize it militarily. But we're signatories to the UN Charter. That is what's ratified, I believe, 89 to 2. And the UN Charter bans aggressive warfare flat out, flat out. And so in that circumstance, you would be in gross violation of the UN Charter. You would be in gross violation of every provision of international law. International law is not a Klausvitsian view of war.

It is an Aquinas view of war. And in that circumstance, you would have an American president and senior American commanders and an American Secretary of Defense who would be international war criminals. And it's not even really a debatable, an argument susceptible to credible debate. We're going to do a super quick lighting round, as promise, and then turn it over the audience. Okay, super quick. Six super quick questions, super quick answers. Mike Pence did this.

We gave him an A-minus without great inflation. I think you'll do better. Are we rated on the quickness or the substance? Oh, it's a holistic review. I like it. Okay. I'm nothing if not competitive. Funniest justice slash best justice to get a beer with.

Those are different answers because we have metrics on this. Justice Gorsuch is the funniest justice in terms of laughs that he gets in court. Best justice to get a beer with is definitely going to be Elena Kagan. She's a big poker player. She's sort of the most highest EQ justice probably on the court. Yeah, easy. I totally defer to that answer. Sarah knows the justice is a lot better than I do. Okay. Second question. Justice is least likely to go on vacation together.

Well, should you answer that question? Because you'll know the answer better than I would. Deciding. I mean. Because I have an answer. This is a very cloistered lifestyle to be a justice. They tend not to be extreme people. Lightning around, Sarah.

Justice is leaked. So do my or an alito. Okay. There we go. If God forbid Chief Justice Roberts dies tomorrow, who's the most sensible replacement currently on the court to elevate to Chief? Cabinet. Barrett. Eight of the nine justices hold Ivy League degrees. Is that good or bad?

Bad. Should we get rid of judicial elections for state court judges like Justice O'Connor wanted? Yes. No. What? No. Yes. Yes on elections for office.

No on retention elections. Good answer. Wait, what? We should not have an election. We should not have an election to nominate a state Supreme Court for someone to become the state Supreme Court justice. I'm okay with retention elections.

Okay, you're still wrong, but okay. I'm only half wrong. If you're explaining, it's not lightning round. I don't understand. Okay. Pre-Dobbs, did you ever think the Supreme Court would actually overturn a row? No. No.

Skip those. Quick Supreme Court reform questions. Should the court have more clerks and larger staff, or should it just be 36, 25-year-olds running around? Yes, correct. Keep it. No, more, bigger. Should the court televise oral arguments? Absolutely not. Over my dead body.

Over our dead bodies. Why? You said it was lighting around. Sorry. Too much transparency is bad. Look what it did in Congress. Yeah, we do not want that bull crap in the Supreme Court. You don't want the type of justices that will.

then get picked if there's television and you don't want the type of advocates. Yeah. Term limits for Supreme Court justices. Terrible idea. Presidents will end up picking them ahead of time when they're running for office. They will become part of the campaign. You will have four people running for office. It will change who runs. You don't get Justice Alito. You don't get Justice Sotomayor. That's not whitening. Yeah, great idea. Two justices per president, 18-year terms, introduces regularity and predictability. We don't have randomized Supreme Court composition based on deaths and random retirements.

Laws, big numbers. It works out just fine in the end. Last one, age limits. Yes. I'm only torn on this because then they'll need jobs after they leave the court. I think that's, you don't want justices who are thinking about their next job. You don't want attorney generals who are thinking about their next job. It is the one thing I've really learned in government. You want this to be a terminal degree, so to speak.

I apologize to the audience. We were having altogether too much fun. went on for too long, but we do want and have some time for your questions, and I want to particularly urge students to ask a question. So if you have one, please raise your hand high and someone will come and bring the microphone to you and say your name and why you're here before you ask question. Hi, my name's Cooper. I'm a first year here. I'm here both out of interest in the courts and as a class requirement. Justice. Reverse those, please.

Absolutely. So, you know, I've intermittently paid attention to the discourse on the courts, and a lot of the meta has come down to a lot of legitimacy, and there's disagreements on this. Some people view the court as being in a very unique state of, like, illegitimacy.

Do you believe this to be true, and do you believe the Roberts Court has done a good job of maintaining their legitimacy? and if so or if not, how can they change and do better? When John Roberts joined the court as Chief Justice in 2005, shortly after he gave an interview to Jeff Rosen, who was here recently, and it's a fascinating interview. It's in the Atlantic.

It's January of 2007, and you can go look it up, because it's like this, like, you know, naive young John Roberts speaking to future John Roberts. But he talks about how John Marshall is really his North Star. And then he has this aside where he says, but you know, of the 17 chief justices, most people would say they've all been failures. Like, you're like, oh, no, dude, you're heading to a bad place. Chief Justice Marshall faced enormous threats from Jefferson. Jefferson tried to impeach justice.

Well, did impeach Justice Chase because Chase had campaigned for John Adams and Jefferson wanted a Supreme Court that agreed with him politically instead of the federalists. He was planning to impeach Marshall next. So you have Marbury v. Madison. You have the impeachment of Chase. I mean, these were existential threats to the legitimacy of the court. And I think it's fascinated that John Roberts sees himself as wanting to aspire to John Marshall before he even knows that he is going to face similar external threats to the legitimacy of the court.

I think those do exist. What I don't think exists are internal legitimacy threats to the court. Really at all, I think you're. have people who don't like decisions from the court, want it to be left to the president when they win the presidency, and then when they lose the presidency, somehow they do want the court to be there. It's an internally incoherent thing that they want. But once you destroy the legitimacy of the court, the credibility of the court, you will not get that back. And so, again, I'm a very process-oriented person. I like to say, I'm a process girl in an

outcome world, everyone sure likes process when they're in the minority, but when they're in the majority, they never imagine they'll be back in the minority. So I disagree with plenty of the court's decisions. I do not think they have a legitimacy problem driven by themselves. I think it is being driven by external actors because of the president, because of Congress, all of these questions are winding up in the court, and they are becoming the arbiters. And so we get mad at them. When we should be mad at the president for doing it through executive order. We should be mad at Congress for being a bunch of Instagram influencers and stop being mad at the justices when they're just doing their jobs. You know, I always ask people when I'm having a real conversation define legitimacy. Like,

what do you mean? Explain it to me like I'm five years old because it's not a self-defining word here. I mean, I'm reminded of the great cinematic classic Blades of Glory. Have you all seen this? Will Therrell? Josh Heater, the first all-male-figered pair. figure skating team. And they're talking about what song to skate to. And they come up with the song and Will Ferrell says, I want to skate to my humps by black eyed peas. And Josh Heater says, what does that even mean? And Will Ferrell says, nobody knows what it means, but it's provocative. It gets the people going. That's what I think when I hear the word legitimacy. No, what are we talking about? It's a provocative word. It gets the people going. But 99.99% of the time,

when I talked to somebody about legitimacy, they immediately say, I didn't like Dobbs or I didn't like Trump of the United States. Whoa, whoa, wrong metric, right? The metric isn't, do you agree with the court? The metric is, is the court performing its function with integrity and staying within its constitutional bounds? And by that standard, I've never heard a coherent argument that the court is illegitimate. Worth noting, by the way, that the Roberts court as a whole has overturned precedent less than any previous court and the half of the Roberts Court since this, you know, current court sort of the Trump appointees joined, has overturned precedent at an even lower rate than the Roberts Court as a whole. So there's also this sense that like history started a year ago

and that people are like, but they're overturning precedent right and left. And it's like literally less than ever before. Hi, my name is Luca. I am also first year here. You guys have mentioned how you think Congress is completely incompetent a few times, both in class and here. And I'm wondering, it seems kind of counterintuitive that the most powerful body in the United States would willingly seed their power and give it up to other branches. Why do you think that is other than the reasons you have already mentioned, like, oh, they'd rather the courts be the bad guys or, oh, CBS hits? There's so many answers to this question. I'm so excited that you asked it,

because it is the right question to ask. Why did this happen? Because if we don't understand why it happened, how can we fix it? So a few things. One, Congress actually did try to maintain some of their power. They, for instance, created this huge administrative state in the progressive era to give the president all this power so they wouldn't have to do all the messy legislation, but right, they didn't allow the president to remove people and Congress maintained a lot of power in that sense. They also had the legislative veto that they put into a lot of these laws, where if the president, for instance, literally was like, I'm going to deport that guy, Congress could buy a one, like just the House of Representatives.

Could be like, nope, not that one, go line by line through people. That maintained a lot of power. The Supreme Court struck down the legislative veto saying, like, well, we don't have that system of government. That's not in the Constitution anywhere. They're probably right about that. But they didn't then strike down the laws that Congress passed. And so all of a sudden, something that had been a compromise becomes an executive branch windfall of power. And Congress loses that check on the executive.

branch. Unitary executive, same thing, right? The president couldn't remove some of these heads of agencies. That was a way for Congress to maintain power, but probably not constitutional. But again, they're not striking down the whole agency windfall to the executive branch. Campaign finance reform, I think, wildly undermined Congress because large dollar donors were no longer an option, so they turned to small dollar donors. Well, small dollar donors, You've got to do a lot to bring in enough donations in five and $20 increments. So you have to fundraise constantly through social media, cable news hits. So everything you do all day is just that.

Congress stopped hiring legislative staff, and they started hiring just more bookers and social media people to raise those small dollars. And how do you raise small dollars? They are not more representative than large dollar donors. Only 2% of Americans will ever give a penny to a politician. They are just as unrepresentative. They're just differently unrepresentative. Small dollar donors are turned on by anger, outrage,

negative polarization, meaning just blaming the other side for the problems. Oh, and the last thing, changes in leadership. This started with Newt Gingrich. It continued through Nancy Pelosi. We used to know, like, as a household name, the chairman of the Ways and Means Committee and various committee members because they had power. We have gotten rid of the power of everyone in Congress,

except the leadership. And so if you're elected to Congress, you show up, And you're like, I'm Mr. Smith goes to Washington, and I've got a 10-point plan for my legislation to fix health care. And they're like, who the fuck are you? I don't care. And your legislation will never see the light of day. So what's the difference between the member of Congress

that slaved away on his fix for Medicare and Social Security and the member of Congress who sat on social media all the time, raising money and blaming the other side for why Medicare wasn't fixed? One of them stayed in Congress, and it's not the guy who worked on the legislation that didn't go anywhere. I've got an answer I don't think enough people talk about. And it's a one-word answer. It's war. Okay, so if you think about the last 100 years, well, not 100 years, let's go back to December 7th to 1941. So from 1941 to 1991, we were in existential struggle. First against Nazi Germany and the Imperial Japan, and then later against the Soviet Union. Wars are not run by committees. They're run by commanders. And so we began to warp the system to provide greater and greater and greater. greater power to a commander-in-chief who had the ability to, without a declaration of war, initiate global thermonuclear war. I mean, we have enormous power that began to move to the

presidency throughout the Cold War. If you go back and you look at statute after statute after statute that is passed, it empowers the president to declare emergencies, delegates power to presidents in states of emergency. These are Cold War era precedent after Cold War era precedent. loans, even student loans, that's not Cold War, that's global war and terror. The provisions in the global and in the student loan statute that were used for Biden's student loan forgiveness were put in there originally, the original, the origin story is to provide relief for people who are going to war in the Middle East after 9-11. So we had the wars after 9-11. All of these things push the government and the public towards the man on the horse, the leader, the one who's going to be the singular figure.

And so I feel like that, you know, everything Sarah has said is correct. I don't think that this part that I'm bringing up right here has been sufficiently talked about. And that is the way in which a series of massive existential threats from 1941 to 1991 and then again from 2001 to the present day where we had large-scale conflict just had enormous gravitational pull on pulling more and more power to the commander-in-chief. And so here we are where we're in a situation in which we have a president, this president, the current president right now is the most powerful single human being to run the United

States in a time of relative peace in the entire history of this country. And I think war is a very big part of that answer. Much as I regret to start to close things down now, I think we've got to let people get home. I'm just going to say, though, I'm going to plant a little idea and also show that I know the podcasting language. I think maybe an AMA episode where everyone here who didn't get a chance to ask their questions can write in might be a good idea. I'm just saying.

AMA, by the way, ask me anything for those, you know, hairs. The email's very easy. Advisory Opinions at the Dispatch.com. So, really, like, you guys should send in questions. We're sorry we didn't get to everyone. And so your book comes out when? April 14th, but you can pre-order it now. And if you pre-order before February 9th, you can go to PRH.com slash Last Branch Bookplate that's on my Twitter and whatever, Instagram.

and I'll send you a signed bookplate too. I did that yesterday. Please join me in thanking Sarah Isger and David French. Do you love the dispatches journalism but don't have time to read it all? We hear this pretty frequently from our members, which is why I'm very excited to introduce Dispatch Voiced, a member's only podcast feed that helps you keep up with our work on your schedule. Here's how it works.

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