The greater Supreme Court decisions of significance are the series of unexplained orders licensing autocratic behavior wielded against the States, universities, labor unions, and anyone who's crossed Trump. When an Administration knows it can act with impunity, it doesn't really matter what the finer details of a given Supreme Court decision may suggest. Last time I checked, Humphrey's Executor was still good law - does anyone think the Trump Administration cares?
I agree with much of what you write. But it's also worth nothing—as many have, often critically—that the Supreme Court frequently rules in favor of the administration (especially on the emergency/shadow docket).
Take Humphrey's Executor. It's still (technically) good law, but the Court has made clear that it's probably on the chopping block. Do your views change if the justices explicitly overrule it (as they likely will during the coming Term)?
Our views definitely should change. Our view should be more like the view of the people who wrote and ratified our Constitution. They expected Congress to be much more active in writing legislation to address issues such as this. Issues like this shouldn't be left up to a mere majority of unelected judges on SCOTUS. It should be addressed by the elected representatives in whom the People vested the power and on whom the people imposed the duty to make all laws that are necessary and proper to protect us all.
In Article I, the People emphasized that “All legislative Powers herein granted” (by the People) “shall be vested” in “Congress.” The People vested in our elected (chosen) representatives in Congress only part of our legislative Powers. We vested in Congress the power to “make all Laws” that are “necessary and proper for carrying into Execution” absolutely “all” the “Powers vested by this Constitution” in Congress or in any part of “the Government of the United States, or in any Department or Officer thereof.” Very much like our Constitution, Congress’s legislative power obviously and expressly extends to making laws that govern (restrain) the powers vested in the president, all executive branch officers, and all judges.
Almost as If to underscore the point that Congress and Article I don't do the work they're intended to do, for the second time in a week, an official U.S. website for the U.S. Constitution is missing much of Article I. This time, virtually the entire article is missing.
I've seen a number of explanations - and none are entirely satisfying. One that's less far-fetched than some others (but still seems fairly unlikely) is that a bot set loose by DOGE consulted an LLM that hallucinated DEI in this part of Article 1 and excised that portion of the constitution on the web site. Whatever caused it, it looks more sloppy than intentional.
Thank you, Robert. I saw both instances and promptly contacted the librarian (via a link for Ask a Librarian under the About tab). To their credit, both times they responded very promptly and remedied the error promptly. The second time, they fixed it very quickly (maybe because the first instance became somewhat notorious). This second instance was different from the first. Article I remained visible via the link for the entire Constitution. But in the link for Article I, alone (which I provided above), everything was missing except the first sentence.
That's definitely a real problem, but it's much harder to solve (as I've discussed with some professors who are focusing on addressing it). One issue is that possible solutions sometimes create tensions with academic freedom—which I also value.
There are a whole host of reasons making it challenging, depending on whether you're talking about the student body or the faculty. As to both the student body and the faculty, viewpoints are harder to track than race. There's no checkbox for political affiliation, and some people have hard-to-classify views (like my own) or don't belong to a political party (like me). But as a floor, student applicants shouldn't be penalized for something conservative on their resume (e.g., involvement in a Republican organization, a pro-life group, etc.).
And then faculty hiring is very hard to fix. You might have 300 to 400 applicants for a single tenure-track professorship, so there's a huge amount of discretion that goes into the ultimate hire. I definitely think conservatives shouldn't be discriminated against in hiring simply for being conservative. But if (largely liberal) professors find substantive problems in the scholarship of a conservative applicant—which they might do more readily for conservatives, given their own liberal views—it's hard to force them to hire the applicant anyway. And I don't know how I feel about so-called "affirmative action for conservatives" or explicit set-asides (e.g., a professorship specifically designated for a conservative scholar).
As long as federal judges don't (knowingly) violate our Constitution by influencing viewpoints at universities (as at least 13 federal judges did with their blatantly unconstitutional letters imposing extra-judicial punishment on university students without any due process of law because of the students' mere very attenuated association (attending the same university) with people who expressed views disfavored by such judges).
“Premised on mistrust of [all] governmental power, the First Amendment stands against attempts to disfavor” the “subjects or viewpoints” of our speech. Citizens United v. FEC, 558 U.S. 310, 340 (2010). “Viewpoint discrimination" by public servants "is poison to a free society;” “it is especially important” that judges emphasize “that the First Amendment does not tolerate viewpoint discrimination” against the people by our public servants. Iancu v. Brunetti, 588 U.S. 388, 399 (2019) (Alito, J., concurring). Any “regulation of speech because of disagreement with the message it conveys” violates our Constitution. Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989).
David, thank you for highlighting that SCOTUS justices are quite comfortable with declaring that line-drawing violates our Constitution when that's what they want to do. Their conduct in this case should and must be contrasted with their pretense in Rucho that they cannot declare partisan gerrymandering unconstitutional merely because judges don't know precisely where to draw the lines (even though they do know that partisan gerrymandering violates much more of our Constitution much more fundamentally than racial preferences in universities).
I've explained what I mean in detail, but it's too long for a mere comment. See "The Criminal Conspiracy between SCOTUS Justices and State Legislators to Defraud and Rob Americans of the Power of our Most Precious Rights" (Parts I and II)
Imagine if you will unqualified applicants being admitted to medical school, being passed through graduation and residency. Then imagine yourself on an operating room table and them cutting on you. No thank you.
The greater Supreme Court decisions of significance are the series of unexplained orders licensing autocratic behavior wielded against the States, universities, labor unions, and anyone who's crossed Trump. When an Administration knows it can act with impunity, it doesn't really matter what the finer details of a given Supreme Court decision may suggest. Last time I checked, Humphrey's Executor was still good law - does anyone think the Trump Administration cares?
I agree with much of what you write. But it's also worth nothing—as many have, often critically—that the Supreme Court frequently rules in favor of the administration (especially on the emergency/shadow docket).
Take Humphrey's Executor. It's still (technically) good law, but the Court has made clear that it's probably on the chopping block. Do your views change if the justices explicitly overrule it (as they likely will during the coming Term)?
Our views definitely should change. Our view should be more like the view of the people who wrote and ratified our Constitution. They expected Congress to be much more active in writing legislation to address issues such as this. Issues like this shouldn't be left up to a mere majority of unelected judges on SCOTUS. It should be addressed by the elected representatives in whom the People vested the power and on whom the people imposed the duty to make all laws that are necessary and proper to protect us all.
In Article I, the People emphasized that “All legislative Powers herein granted” (by the People) “shall be vested” in “Congress.” The People vested in our elected (chosen) representatives in Congress only part of our legislative Powers. We vested in Congress the power to “make all Laws” that are “necessary and proper for carrying into Execution” absolutely “all” the “Powers vested by this Constitution” in Congress or in any part of “the Government of the United States, or in any Department or Officer thereof.” Very much like our Constitution, Congress’s legislative power obviously and expressly extends to making laws that govern (restrain) the powers vested in the president, all executive branch officers, and all judges.
Almost as If to underscore the point that Congress and Article I don't do the work they're intended to do, for the second time in a week, an official U.S. website for the U.S. Constitution is missing much of Article I. This time, virtually the entire article is missing.
See https://constitution.congress.gov/constitution/article-1/
It just now re-appeared!
I hadn't heard there was a 2nd disappearance, but the first disappearance was captured by the Internet Archive's Wayback Machine:
here you can see where sections 9&10 and parts of section 8 disappear: https://web.archive.org/web/diff/20250717091439/20250806023110/https://constitution.congress.gov/constitution/
and here you can see where they reappear: https://web.archive.org/web/diff/20250806023110/20250806193218/https://constitution.congress.gov/constitution/
I've seen a number of explanations - and none are entirely satisfying. One that's less far-fetched than some others (but still seems fairly unlikely) is that a bot set loose by DOGE consulted an LLM that hallucinated DEI in this part of Article 1 and excised that portion of the constitution on the web site. Whatever caused it, it looks more sloppy than intentional.
Thank you, Robert. I saw both instances and promptly contacted the librarian (via a link for Ask a Librarian under the About tab). To their credit, both times they responded very promptly and remedied the error promptly. The second time, they fixed it very quickly (maybe because the first instance became somewhat notorious). This second instance was different from the first. Article I remained visible via the link for the entire Constitution. But in the link for Article I, alone (which I provided above), everything was missing except the first sentence.
Next, let's see if we can get some "affirmative action" to get more viewpoint diversity into those schools.
That's definitely a real problem, but it's much harder to solve (as I've discussed with some professors who are focusing on addressing it). One issue is that possible solutions sometimes create tensions with academic freedom—which I also value.
There are a whole host of reasons making it challenging, depending on whether you're talking about the student body or the faculty. As to both the student body and the faculty, viewpoints are harder to track than race. There's no checkbox for political affiliation, and some people have hard-to-classify views (like my own) or don't belong to a political party (like me). But as a floor, student applicants shouldn't be penalized for something conservative on their resume (e.g., involvement in a Republican organization, a pro-life group, etc.).
And then faculty hiring is very hard to fix. You might have 300 to 400 applicants for a single tenure-track professorship, so there's a huge amount of discretion that goes into the ultimate hire. I definitely think conservatives shouldn't be discriminated against in hiring simply for being conservative. But if (largely liberal) professors find substantive problems in the scholarship of a conservative applicant—which they might do more readily for conservatives, given their own liberal views—it's hard to force them to hire the applicant anyway. And I don't know how I feel about so-called "affirmative action for conservatives" or explicit set-asides (e.g., a professorship specifically designated for a conservative scholar).
As long as federal judges don't (knowingly) violate our Constitution by influencing viewpoints at universities (as at least 13 federal judges did with their blatantly unconstitutional letters imposing extra-judicial punishment on university students without any due process of law because of the students' mere very attenuated association (attending the same university) with people who expressed views disfavored by such judges).
“Premised on mistrust of [all] governmental power, the First Amendment stands against attempts to disfavor” the “subjects or viewpoints” of our speech. Citizens United v. FEC, 558 U.S. 310, 340 (2010). “Viewpoint discrimination" by public servants "is poison to a free society;” “it is especially important” that judges emphasize “that the First Amendment does not tolerate viewpoint discrimination” against the people by our public servants. Iancu v. Brunetti, 588 U.S. 388, 399 (2019) (Alito, J., concurring). Any “regulation of speech because of disagreement with the message it conveys” violates our Constitution. Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989).
Great piece David. Thanks for addressing this issue.
Thanks for your kind words, Chuck—and for your many years of work on this issue!
https://www.cooperkirk.com/practice-areas/constitution-civil-rights/
David, thank you for highlighting that SCOTUS justices are quite comfortable with declaring that line-drawing violates our Constitution when that's what they want to do. Their conduct in this case should and must be contrasted with their pretense in Rucho that they cannot declare partisan gerrymandering unconstitutional merely because judges don't know precisely where to draw the lines (even though they do know that partisan gerrymandering violates much more of our Constitution much more fundamentally than racial preferences in universities).
I've explained what I mean in detail, but it's too long for a mere comment. See "The Criminal Conspiracy between SCOTUS Justices and State Legislators to Defraud and Rob Americans of the Power of our Most Precious Rights" (Parts I and II)
https://open.substack.com/pub/blackcollarcrime/p/the-criminal-conspiracy-between-scotus?r=30ufvh&utm_campaign=post&utm_medium=web&showWelcomeOnShare=false
https://open.substack.com/pub/blackcollarcrime/p/the-criminal-conspiracy-between-scotus-21b?r=30ufvh&utm_campaign=post&utm_medium=web&showWelcomeOnShare=false
Imagine if you will unqualified applicants being admitted to medical school, being passed through graduation and residency. Then imagine yourself on an operating room table and them cutting on you. No thank you.