Law/Crime

AWKWARD:

The Anatomy of Constitutional Despair: a review of We the People by Jill Lepore (Paul Moreno, 9/29/25, Law & Liberty)

FDR’s New Deal seized up in 1937, after his attack on the Supreme Court, his own recession, and his attempt to “purge” his own party. But for a while—from the 1940s through the 1960s—liberals espied a solution: get control of the Supreme Court, which had become a “continual constitutional convention.” But the route of judicial advancement of liberal goals stalled and even reversed sometimes (though it occasionally advanced) after 1969, and the Trump-packing of the Court has caused them to add “judicial supremacy” to their litany of complaints about the dysfunction of the Constitution.

Live by the gavel…

BREAKING THE ADMINISTRATIVE STATE IS PROGRESS:

Abundance Liberalism versus Adversarial Legalism (Thomas F. Burke & Jeb Barnes, Fall 2025, National Affairs)

For decades, liberals embraced lawsuits, legal rights, and judicial policymaking as means of driving social change and holding powerful interests to account. But recent years have seen second thoughts proliferate, especially among proponents of abundance liberalism, the movement to unleash the power of both government and the private sector to supply essential goods and services. Abundance liberals from Ezra Klein and Derek Thompson to Jennifer Pahlka have embraced law professor Nicholas Bagley’s argument from a 2019 article, “The Procedural Fetish,” that liberal-backed rules intended to make executive-branch policymaking more open, transparent, and accountable have become a major barrier to progressive change.

Bagley’s widely cited article showed how liberals’ unexamined dedication to “proceduralism” has handicapped state capacity. His examples come mostly from his specialty, administrative law, where major new initiatives must run a gauntlet of procedural hurdles, many of them erected by the left, before they can take effect. As Bagley noted, a long tradition of research in law and political science has examined and critiqued the effects of those hurdles, but this work is “absent entirely from the political conversation and relegated to the sidelines of the academic debate.”

We are all Gorsuchian now.

“WOMB-TO-TOMB” (profanity alert):

The Return of Superfly (Mark Jacobson, 8/14/2000, New York)

It was a matter of control, and trust. As the leader of the heroin-dealing ring called the Country Boys, Lucas, older brother to Ezell, Vernon Lee, John Paul, Larry, and Leevan Lucas, was known for restricting his operation to blood relatives and others from his rural North Carolina area hometown. This was because, Lucas says, in his down-home creak of a voice, “a country boy, he ain’t hip … he’s not used to big cars, fancy ladies, and diamond rings. He’ll be loyal to you. A country boy, you can give him any amount of money. His wife and kids might be hungry, and he’ll never touch your stuff until he checks with you. City boys ain’t like that. A city boy will take your last dime, look you in the face, and swear he ain’t got it … You don’t want a city boy — the sonofabitch is just no good.”

ALL THINGS IN MODERATION:

Mission Accomplished for the Roberts Court? (The Law & Liberty Podcast, 7/15/25)

The Roberts Court delivered a number of wins for conservatives in its recent term, and Professor John O. McGinnis thinks it may mark the maturation of the Court’s administrative state jurisprudence. Host and contributing editor James Patterson is joined by Professor McGinnis, who explains both the broader trends of the Supreme Court, and some of this year’s major cases, including Mahmoud v. Taylor, US v. Skrmetti, and Trump v. CASA.

A good look at how consrvative–in every sense of the word–the current Court is.

AND NO ONE JUDGE SHOPS MORE THAN THE rIGHT:

Supreme Court rolls back (finally!) politically motivated judge-shopping (Ted Diadiun, 7/07/25, cleveland.com)

Under the archaic policy that had become the norm, a ruling from any one district judge, who hears a specific lawsuit and believes a presidential order to be unconstitutional, immediately becomes the ruling for the entire country – unless and until it is successfully appealed to the Supreme Court.

The process is called “universal injunction.” Once rarely employed, it has been used with increasing frequency over the last three presidential administrations – primarily in opposition to Trump’s orders.

It’s generally considered that universal injunctions became accepted practice in 1963, although the Harvard Law Review dug up an injunction issued in 1913. Either way, according to research gathered by the Baker Hostetler law firm, only 27 such injunctions occurred in the entire 20th century. Contrast that with the 64 issued in Trump’s first term alone, and the 30 that have stopped him in just the first three months of his current term.

REINING THEIR BRANCH IN:

Why Now? The Timing of the Universal Injunction Ruling (William Baude, Jul 01, 2025, Divided Argument)

Indeed, I sometimes think about the briefing in Summers v. Earth Island Institute back in October Term 2008. Summers turned out to be a moderately important Article III standing case, but one of the other questions presented by the government — this was the George W. Bush administration — was “Whether the court of appeals erred in affirming the nationwide injunctions issued by the district court.”

The argument against the nationwide injunction was not as fully developed at the time, was not as categorical, and relied more heavily on the issue preclusion precedent of US v. Mendoza. But it was there, accompanied by a warning that this practice was just starting to grow in district courts in the Ninth Circuit.

I sometimes wonder what the past two decades of public law litigation would look like if the Court had chosen to resolve the case on nationwide injunction grounds rather than the Article III standing ground it chose. Much better, I think! But for whatever reason, the Court did not do that.

The nationwide injunction also became prominent during the last few years of the Obama administration when a Texas district court issued a nationwide injunction against the DAPA program. But this time, when the Obama administration petitioned for cert. they did not ask the Court to review the nationwide injunction issue. That turned out to be especially fateful when Justice Scalia died while the case was pending resulting in the injunction being affirmed by an equally divided court. But again I wonder what would have happened if the United States had petitioned on the issue and gotten five or more votes to limit the scope of the injunction even while affirming on the merits.

SECRET LAWS:

Freedom and the Lawmakers: A Book Review of Over Ruled: The Human Toll of Too Much Law, by Neil Gorsuch and Janie Nitze (Alberto Mingardi, EconLib)

Gorsuch and Nitze provide some figures of the paper blizzard sweeping over Washington, D.C. “Less than a hundred years ago, all of the federal government’s statutes fit into a single volume. By 2018 the U.S. Code encompasses 54 volumes and approximately 60,000 pages. Over the last decade, Congress has adopted an average of 344 new pieces of legislation each session. That amounts to about 2 or 3 million words of new federal law each year.” Agencies “publish their proposals and final rules in the Federal Register; their final regulations can also be found in the Code of Federal Regulations. When the Federal Register started in 1936, it was 16 pages long. In recent years, that publication has grown by an average of more than 70,000 pages annually. Meanwhile, by 2021 the Code of Federal Regulations spanned about 200 volumes and over 188,000 pages.” And “not only have our laws grown rapidly in recent years… so have the punishments they carry.”

THAT WAS EASY:

After Immunity: How Judge Chutkan Should Apply Trump v. U.S.—and When (Norman L. Eisen, Matthew A. Seligman, E. Danya Perry and Joshua Kolb, September 2, 2024, Just Security)

In our view, it is appropriate to proceed first with briefing on whether the superseding indictment and other evidence to be presented at trial meet the tests of Trump, as suggested by the special counsel in the joint status report. Immunity issues are typically treated as a threshold matter, Hunter, 502 U.S. at 227 (1991) (the Supreme Court has “repeatedly … stressed the importance of resolving immunity questions at the earliest possible stage in litigation”), and doing so is consistent with the Court’s opinion in Trump, including the rationale for interlocutory appeal to protect the interests of the presidency.

As we have explained, Smith has neatly teed up the critical questions for the trial court judge with his streamlined pleading, stripping out material that clearly implicates immunity and adding modifying language to clarify allegations that the government believes relate to unofficial conduct. All of that has made the complex task of applying the Trump test easier for the judge and the parties, and we believe the D.C. Circuit and the Supreme Court will ultimately uphold the superseding indictment.

The most hotly contested issue is likely to be whether the allegations about the vice president concern his official executive branch role, his legislative role as the president of the Senate, or his private one as running mate and whether they are or are not immune. A full analysis of this point is beyond the scope of this article and will be the subject of a future one, but we believe the special counsel has the better of the argument here. See Trump, 144 S. Ct. at 2337 (“Despite the Vice President’s expansive role of advising and assisting the President within the Executive Branch, the Vice President’s Article I responsibility of ‘presiding over the Senate’ is ‘not an “executive branch” function.’ With respect to the certification proceeding in particular, Congress has legislated extensively to define the Vice President’s role in the counting of the electoral votes, see, e.g., 3 U.S.C. § 15, and the President plays no direct constitutional or statutory role in that process”) (quoting Memorandum from L. Silberman, Deputy Atty. Gen., to R. Burress, Office of the President, Re: Conflict of Interest Problems Arising Out of the President’s Nomination of Nelson A. Rockefeller To Be Vice President Under the Twenty-Fifth Amendment to the Constitution 2 (Aug. 28, 1974)).

Depending on whether and how Trump challenges these and other allegations in the indictment, briefs alone may not be sufficient to resolve the dispute or to rebut any presumption of official conduct, and an evidentiary hearing or “mini-trial” may be required, such as with respect to the question of the capacities in which Pence was acting at particular crucial moments. It may well be that the dispositive evidence as to such questions is his own testimony.