David, I agree PK was insightful and honest---but clearly from her (and your) perspective. I will not hold my breath until you have another interview with a legal scholar from the other perspective. I do believe you could find a few if you looked.
As for the theoretical situation where an Executive (President) defies an order from the Supreme Court (as many thought Biden did regarding student loan forgiveness), it is silly to consider "incarceration" of anyone or dealing with 3 percent of the US population "in the streets". The Judiciary is not more "imperial" than the Executive, as we have recently learned. To me, it is obvious that the last word on such a crisis must come from the Legislative with an Impeachment vote. One way or the other. I think that is what PK implied with one of her answers. And let's not forget that Justices can be impeached also.
Point taken! I do pride myself on the ideological diversity of my guests.
I'm not aware of a legal podcast that has had more conservative, right-of-center, or Republican guests than mine. Here are some examples (in alphabetical order):
Professor Randy Barnett, former Governor Chris Christie, former U.S. Solicitor General Paul Clement, Professor Brian Fitzpatrick, Judge Kenneth Lee, Libby Locke, Judge Kevin Newsom, Ilya Shapiro, Judge Amul Thapar, Kristen Waggoner, and former Judge Stephen Vaden.
To be sure, I suspect that some of these folks would not be regarded as "conservative" in certain quarters (perhaps because some of them have been critical of Trump). But again, I don't know of a legal podcast that has welcomed more conservatives than Original Jurisdiction.
In terms of legal scholars, I would point out that the academy skews very strongly to the left (as I've discussed—and complained about—in these pages). And some of them, I suspect, would decline my invitation. But it can't hurt to task, so I'll certainly try.
I'm as progressive as they come, but I subscribe here and listen specifically for the diversity of viewpoints you present. Here and Advisory Opinions. I don't agree with everything, by far, but it's how I stay balanced and thinking.
David, I'm perplexed by your suggestion that the Supreme Court might not be able to enforce orders against an intransigent Executive Branch. Don't the courts have broad contempt powers? Don't those powers allow them to incarcerate government officials who defy court orders? It might be politically difficult to incarcerate the President himself; but is there any reason to believe the Court would be unable to incarcerate lower officers of the Executive, if push came to shove?
The idea that Trump is going to win a showdown with the Supreme Court just strikes me as magical thinking. Yes, the President ostensibly controls the military, but I don't see how that would enable him to ignore contempt orders, unless he literally conducts a military coup. (And Trump, as frightening as he may be in some respects, is not capable of orchestrating a coup of the American government.) The Executive Branch is stronger than the Judiciary if the two engage in open armed conflict; but absent that open conflict, the Judiciary is much, much stronger.
And for what it's worth, I have a different theory for why the Supreme Court might take a (small-c) conservative approach with respect to the Trump administration: it's because they're conservative! For the conservative jurist, there is no need to aggressively repudiate every insane thing the administration says or does. Just enjoin those actions likely to cause significant irreversible damage, and let everything else get sorted out at the Judiciary's ordinary stately pace.
David, I agree PK was insightful and honest---but clearly from her (and your) perspective. I will not hold my breath until you have another interview with a legal scholar from the other perspective. I do believe you could find a few if you looked.
As for the theoretical situation where an Executive (President) defies an order from the Supreme Court (as many thought Biden did regarding student loan forgiveness), it is silly to consider "incarceration" of anyone or dealing with 3 percent of the US population "in the streets". The Judiciary is not more "imperial" than the Executive, as we have recently learned. To me, it is obvious that the last word on such a crisis must come from the Legislative with an Impeachment vote. One way or the other. I think that is what PK implied with one of her answers. And let's not forget that Justices can be impeached also.
Point taken! I do pride myself on the ideological diversity of my guests.
I'm not aware of a legal podcast that has had more conservative, right-of-center, or Republican guests than mine. Here are some examples (in alphabetical order):
Professor Randy Barnett, former Governor Chris Christie, former U.S. Solicitor General Paul Clement, Professor Brian Fitzpatrick, Judge Kenneth Lee, Libby Locke, Judge Kevin Newsom, Ilya Shapiro, Judge Amul Thapar, Kristen Waggoner, and former Judge Stephen Vaden.
To be sure, I suspect that some of these folks would not be regarded as "conservative" in certain quarters (perhaps because some of them have been critical of Trump). But again, I don't know of a legal podcast that has welcomed more conservatives than Original Jurisdiction.
In terms of legal scholars, I would point out that the academy skews very strongly to the left (as I've discussed—and complained about—in these pages). And some of them, I suspect, would decline my invitation. But it can't hurt to task, so I'll certainly try.
I'm as progressive as they come, but I subscribe here and listen specifically for the diversity of viewpoints you present. Here and Advisory Opinions. I don't agree with everything, by far, but it's how I stay balanced and thinking.
A nice and interesting interview.
David, I'm perplexed by your suggestion that the Supreme Court might not be able to enforce orders against an intransigent Executive Branch. Don't the courts have broad contempt powers? Don't those powers allow them to incarcerate government officials who defy court orders? It might be politically difficult to incarcerate the President himself; but is there any reason to believe the Court would be unable to incarcerate lower officers of the Executive, if push came to shove?
The idea that Trump is going to win a showdown with the Supreme Court just strikes me as magical thinking. Yes, the President ostensibly controls the military, but I don't see how that would enable him to ignore contempt orders, unless he literally conducts a military coup. (And Trump, as frightening as he may be in some respects, is not capable of orchestrating a coup of the American government.) The Executive Branch is stronger than the Judiciary if the two engage in open armed conflict; but absent that open conflict, the Judiciary is much, much stronger.
And for what it's worth, I have a different theory for why the Supreme Court might take a (small-c) conservative approach with respect to the Trump administration: it's because they're conservative! For the conservative jurist, there is no need to aggressively repudiate every insane thing the administration says or does. Just enjoin those actions likely to cause significant irreversible damage, and let everything else get sorted out at the Judiciary's ordinary stately pace.