The Opinions - This Supreme Court Philosophy Could Constrain Trump

Episode Date: February 10, 2025

The biggest challenge to President Trump’s executive orders may be the American judicial system. In this episode, the Times Opinion columnist David French is joined by the federal judge Jeffrey S. Sutton to talk about the principles that guide the courts and how the calls made in those rooms could decide the future of American democracy in the next four years.Thoughts? Email us at [e-mail]. Hosted by Simplecast, an AdsWizz company. See pcm.adswizz.com for information about our collection and use of personal data for advertising.

This is The Opinions, a show that brings you a mix of voices from New York Times opinion. You've heard the news. Here's what to make of it. I'm David French, and I'm an opinion columnist at the New York Times. I'm also a lawyer who has practiced constitutional law for more than 20 years before I became a journalist. Many of Trump's recent executive actions will be ultimately decided by the court. Elon Musk's access to the Treasury Department's payment system, the effort to end birthright citizenship, freezing federal funding, the list goes on. And while it's tempting to see the conservative judges and the Trump administration as one big right-wing blob, that is not the case. The vast majority of Republican-appointed judges and justices, even the judges and justices that Trump appointed are pre-Trump conservatives.

They were taught and advocated a legal theory that is often fundamentally at odds with an authoritarian view of government power. And it's no accident that the first Trump administration lost time and again, even when Republican nominees dominated the court. One of the judges whose court could hear a case challenging Trump's agenda is Judge Jeffrey Sutton. He's the chief judge of the Sixth Circuit Court of Appeals and one of the most respected judges in the country. He is known as a feeder judge. His law clerks disproportionately go on to work for the Supreme Court. Judge Sutton cannot talk about the specifics of any case that may come before him, but he can do something that I think is even more important than that.

Talk through the principles that guide judges to make their determinations. It may sound really high level, but small things like how a word is interpreted or bigger questions like, how is a judicial philosophy applied, have huge consequences. And I think now more than ever is an important time for Americans to understand

these subtleties. They may very well decide the future of American democracy. So I asked Judge Sutton to walk me through them. Judge Sutton, thank you so much for joining me. It's a pleasure to be here. Thank you, David.

So, Judge, I want to begin in a very basic way. You know, one of my absolute favorite comedy movies is this movie called Office Space. I don't know if you've seen it. I'm afraid not. I'm a very serious federal judge. Well, I'm afraid you're missing out because it's one of the best office comedies.

And there's this part of it where the consultants come in and they're talking to all the employees and they begin with this question. What would you say you do here? And so I want to begin with a very similar question. You're the chief judge of the Sixth Circuit Court of Appeals. What is it that you do? Describe your job for the listeners. Sure. Well, the Sixth Circuit is one of 13 intermediate federal courts of appeals. So the trial courts take cases to us if there's an appeal. And if someone doesn't like a decision of the Sixth Circuit, they take it to the U.S. Supreme Court. So we're middle management judges. You know, to give you a sense of how, you know, just the Sixth Circuit, which covers Michigan, Ohio, Kentucky, Tennessee, I think we have like five, 10 million more people in that circuit than in all of us. So our jurisdiction is broader than the High Court of Australia's. The one difference is we're not the final say. The U.S. Supreme Court, of course, can reverse us if they disagree with one of our decisions.

So the reason why I wanted to have this conversation with you, Judge, is that originalism is a word that is often used, and I feel like not as often understood. And so why talk about it? This is not just an academic exercise. because for the first time, certainly in my adult life, I would say there is a single judicial philosophy that I would say is certainly the dominant philosophy of the Supreme Court. And if it's the dominant philosophy of the Supreme Court, it's going to have disproportionate effect on the courts of appeal. And it is also a philosophy of an extraordinary number. I'm not going to say most of the appellate justices themselves, but a very large percentage of appellate justices would say that they are also originalists.

So let's just get very basic, Judge Sutton. What is your definition of originalism? Well, it's really essentially paying attention to the text of the Constitution, the words of the Constitution. That's the basic idea. I think the essence of originalism is to respect those words,

respect the context historically in which they were written, and then as a judge or a justice, adhere to that fixed, meaning because just analogize it to something else we put in writing. If you and I were to engage in a contract to sell a house, we would want to put that in writing. We would say the price and the time. And having put it in writing, we would both assume that the meaning of the contract would be fixed. It wouldn't change because one of us had a misadventure or the stock market went down. We would be stuck with the words. Now, in a constitution,

the two key goals are structure, establishing who's doing what, and then rights of individuals. And the reason you commit those to writing is you want to make sure that a few dozen years, a couple hundred years, or even 250 years later, that language, those guarantees are respected come what may.

Now, the only thing that's slightly misleading about originalism or textualism is that it's a lot of things. to explain than it is to necessarily follow. So back to our house contract. If you and I entered into a contract where you were going to agree to never do anything unreasonable to me for 200 years, that's not as easy as a house contract. I think that's the heart of the problem when you comes to the U.S. Supreme Court. I actually think all justices on the court, all justices who have ever served on the U.S. Supreme Court, respect the language of the Constitution.

They generally assume it has a fixed meaning, and they're all interested in the history that led to the guarantee and the immediate history after the guarantee. I think the challenge occasionally is what to do with a very general word like unreasonable or a concept like ecore protection, and then applying it to circumstances that no one contemplated. I think that's where the justices, I think, understandably, and we court of appeals judges struggle because no amount of history searching is going to tell you precisely what to do with, you know, this 18th century language in the 21st century, at least as to some things. That leads me to my next question. I think you really hit the nail on the head as far as, you know, a lot of people are listening and they'd say, sometimes the text is quite clear, such as what is the threshold for overriding a veto, for example.

But if it's something like a prohibition against a, quote, unreasonable search and seizure, or the sweeping language of the First Amendment, Congress will make no law abridging the freedom of speech, this is where things get a lot more debatable. And how does an originalist look at that kind of vague language and determine a fixed meaning? What's the process? What's the method? Right. Not easy with free speech and the First Amendment because, well, there's some parts that are easy. Like we know for sure that it was designed to, you know, allow people to dissent from the existing government. So political speech where you disagree with who the president is or who your senator is and you want a new one, that's easy. That's core. Everybody understands that. Liberals and conservatives agree 100%. But boy, now what do you do if it's, pornography or commercial speech, you know, advertisements. I actually think, I think the debate is less about originalists versus living constitutionalists than it is about judges when the meaning runs out. Super quick interruption, Judge. What is living constitutionalism? What do you mean by that? Yeah, so I think the concept is that most words in the Constitution are fixed. For example, the president has to be 35. That was true in 1789. It's true today. It doesn't matter that actuarial tables have changed. The living constitutionalist perspective really comes into play with more

general words, unreasonable search and seizure, equal protection, perhaps due process. And the idea is that judges have authority to give an evolving meaning to some of these terms, that it's not fixed in 1789 or 1791. And in America, in history, that approach has sometimes been used to identify new norms and to constitutionalize them. The debate with originalists is, yes, we respect that, but for every time living constitutionalism leads to a happy result with more protection of liberty, there's always the risk that the evolving nature of the guarantee might go down. In other words, what goes up can go down. So I'm on the somewhat stingy side, that if the meaning runs out, like, I'm just not sure.

What do you mean by the meaning runs out? That the history doesn't really tell you what free speech should mean with respect to, say, technology, commercial speech, advertising. To the extent the history runs out in terms of telling you what the fixed meaning is, my take is to say at that point, you know, we have democracy, representative government. the default is to allow the states, legislatures, and Congress to sort it out and to get some leeway on that. I think others would fairly say, I'm not sanctimonious remotely about my perspective, but others would say, no, no, no, there's no default.

You've got to just keep looking and do the best you can and come up with the best reading. And that becomes the fixed meaning, and then you've got to stick with it. Right. So one of the things that is happening in real time that we are seeing is that a lot of the most contentious cases, you know, that you can think of that are the headline-making cases over the last several, many years have been what you might call the culture war cases. So a religious liberty case or a case about abortion or free speech. But now we're moving into something different, which is key clashes around separation of powers, which is a term that, you know, all but the nerdiest person, their eyes kind of glaze over. What are we talking about here? So talk to me a little bit about how does an originalist approach the structure, the role of the legislative, the role of the executive, the judicial branch as well. Well, first of all, it might surprise people, but I think most judges, certainly most originalist judges, think structures way more important.

And like, that's the most important thing we do is figuring out what the answer to the who decides question is. Is this for the president? Is this for Congress? Is this for the president in Congress? And that there's nothing more important than that role. And the whole idea of separating powers was this assumption that no one in government could be trusted, at least eventually. There's just always the risk that someone in government at some point is going to lose track of the true interests of the people they're representing, their constituents. And the great insight of the framers was the only

way to deal with this human nature problem was to separate government in as many ways as possible, both horizontally, the president, Congress, and the courts, and then vertically the national government with the states. Now, as an originalist, the thing that's hard about this, if we think finding the fixed meaning of free speech in 1791 and applying it to today is hard, it's even harder with separation of powers because that's actually implied. Right. The Constitution doesn't have a separation of powers clause, the federal constitution anyway. It implies it by Article 1 is for Congress, Article 2 is the president, Article 3 is the courts. So obviously the Federalist papers and, you know, some of the philosophers in which the framers relied are going to be really helpful. But,

you know, a lot of judgment involved in figuring out where those lines are. I do think The key point for the court is just making sure no one branch gets too much power. That strikes me as almost the whack-a-mole game of American history, where you're just constantly making sure that no one branch of government has too much authority. And when they do, responding to that by trying to limit that authority so that there is balance. But, you know, fixed meaning and balance is not a walk in the park. That's a difficult thing to sort out. Well, I'm glad you're saying that because one thing, I was talking to my students not long ago about

originalism. And I said, I just want you to understand if there's kind of two kinds of originalism. There is one L dorm room originalism. And then there is fully grown originalism. And one L dorm room originalism is sort of this, when you first encounter it, oh, I can figure this all out. There is one answer to all of these questions. and it's found by sort of digging through the historical record.

And then you do that for a while and you realize, oh, history is messy. It's subject to competing interpretations so that even two originalists applying a very similar method could reach different outcomes, which is one of the reasons why you don't always have the originalist justices on this ring court in lockstep with each other. And so let's dig down on one concept that has become a part of originalism that's getting controversial. And that is the phrase text, history, and tradition. That a judge who is an originalist is looking at the text, as we said, looking at history,

and looking at tradition. The first part seems pretty self-explanatory, but the next two parts, talk to me, what is the difference between history and tradition? Is there really a difference? Is this kind of just a phrase that flows off the tongue? How do you interpret that? I think what it's trying to capture is the history is the original public meaning of the words. So you have the text, you have these words.

They have a time 1789, 1791, 1868. And so the history part of it is the backdrop, the understanding of that language, and what an educated person would have understood those words to mean. And I think tradition helps to elaborate the meaning of the general terms, plus the history in this way. I guess the insight, the intuition, is that if you enact something, this language and a constitution in 1789,

but if in 1820 everyone is following this kind of understanding, that's the tradition I think they're trying to capture. I think it has a decent intuition behind it. I'd probably prefer the practices of people in 1820 to my sense of things in 2025. I mean, they're closer in time, but I think often tradition is allowed to refer to things a little later.

So a couple of things. One, I want to make some of our more abstract structural stuff a little bit more concrete. I don't have insight into the future. I can make educated guesses. But one of the educated guesses that I can make is that a couple of doctrines, legal doctrines,

that the Supreme Court has been articulating and in many ways, maybe even reviving, might become more important in jurisprudence over the next few years. And one of them is called non-delegation. And another one's called major questions doctrine. So I guess my question to you judge is, what are those two doctrines and why should reasonably informed Americans become familiar with what they mean? Yeah. Well, I would use adult supervision before I tried this out at a cocktail party because it may be your last invitation, but let's start with major question doctrine. I think the way it's been explained so far is that if an agency, so federal government has lots of agencies,

the FCC, et cetera, and if agencies run by the president announce a rule that's really significant, the court has said in its major question doctrine that they've got to find a clear statement in the congressional statute to allow that rule. So it kind of creates a hurdle for the agency to clear if it announces something that's a big idea. And I think a lot of people have been skeptical of the major question doctrine, perhaps some a little fearful,

that the court is somehow showing its skepticism of agencies and the power they've developed in the last roughly 100 years. I think there's another way to think about it. Justice Barrett at one point made the point that it's just kind of a common sense intuition, a common sense canon, that if you have a really big rule, you better show some evidence in the statute

for that very big rule. I think that part of it, most people would understand. They wouldn't want federal agencies announcing huge policies with very little support from a statute that their representatives in Congress passed. Non-delegation, I really, I think you're right, is an interesting issue. And here's the way that one, again,

I would not try this at a cocktail party. Oh, I do it all the time, Judge. And that's why I'm just covered up an invite. Yeah, I'll bet. Friday nights are a lonely night. Yeah. So the idea there, again, I think most people agree with it, is that we can't allow Congress to basically delegate,

pass on, give its power to an agency. and let it make all the complicated policy choices. So it would be a little unusual if you had Congress just saying to the FCC, go do whatever seems right to you. That's fine. That, I think all nine members of the court would be skeptical of and would just be a non-delegation problem. You can't do that. So I think you're right that that is going to be a relevant doctrine in the future. if I were a citizen, the way I would think about it, is just who do I want making the choices? Do I want it to be Congress with the support of the president or I want it the agencies run by the president? And as we know from the last six months, you can have presidents from different political parties. So whatever your view,

if you like a Republican president's with lots of power, be prepared to deal with Democratic presidents with lots of power. And so it's actually a neutral debate. It's not favoring one side or the other. So you issue decisions, you make determinations, and let's talk about how judicial decisions are enforced. What are the tools at your disposal to enforce a decision? You know, in my life, in my litigation career, I never really thought that through because once we got a decision from the court, everybody just did it. But what are the enforceability tools that reside with the judiciary?

Do you have any real substantial tools? Well, not really. We famously do not have the power of the treasury. We don't have the power of the sword. We don't have a military to enforce our decisions. We issue judgments, and those judgments are enforceable. We have U.S. marshals. So, for example, if someone is convicted of a crime,

there's a U.S. marshal to enforce the judgment. But, you know, when you think about the court invalidating a state law, that's a little trickier. All we can do is issue the judgment. In fact, let's just say it's a provision in a state statute. We say it's unconstitutional. It's still there. There's no power of erasure. We don't take it off the books. It's still sitting there. The question is whether someone relies on it. I think the reason, at least historically in the last hundred years, people have relied on those things. They're twofold. One is trust in faith in the courts, which of course is really important. But the other is the self-interest problem that, you know, if you're a government that refuses to follow a judgment, you're going to get a lot of lawsuits.

You're going to have to pay attorney's fees for all of those lawsuits. That gets very expensive, very quickly. And then you might be sanctioned, which, you know, contempt can mean going to jail if you're an officer of a government or, you know, sanction could be monetary. So I think those are the reasons, but, you know, you're right. And as a matter of American history, there have been times where individuals and even governments in the United States in one case not willing to follow U.S. Supreme Court decisions. It's not something we want to have happen again. Judge, thank you very much for the time. I really appreciate it. Thank you for inviting me, David.

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