3/ that colleagues will sign. A skeet isn’t the place to provide evidence for these assertions (but there’s a wonderful memo to himself from Frank Murphy complaining that Hughes had said so much about a case that there was nothing left for anyone else to say).
2/ w/occasional requests to tweak language peripheral to primary arguments. Blackmun’s conference notes (and Owen Roberts’s earlier ones) indicate that justices state their positions but don’t engage w/ each other. “Deliberation” occurs when a justice tries to figure out how to draft an opinion...
1/ Leaks re SCt are said to raise the risk of impairing deliberation w/in the Ct (more than leaks, etc, impair deliberation in Congress). The evidence that there’s anything resembling deliberation w/in the Ct is, to put it mildly, quite thin. Correspondence b/t justices is mostly position-staking...
2/ “Apparently” b/c she writes “behind closed doors,” which might refer to some other room; but she also writes “observers noted,” which indicates that it wasn’t a private conversation between Kagan and Breyer.
1/ More on pearl-clutching re leaks: What happens in the Conference room itself is just about the only thing that law clerks don’t have direct access to. So, who’s the source for Monica Herrington’s account of Justice Kagan shouting at Justice Breyer apparently in the Conference room?
For more than you want to know about Shlaes’s accuracy, see “Epistemic Closure and the Schechter Case,” papers.ssrn.com/sol3/papers....
Some of the Pentagon Paper were about old stuff but had implications for on-going activities.
2/ In all the institutions members have on-going relations of trust & mistrust, which they manage to navigate in a world where behind-the-scenes activities are regularly described. Maybe a near-real-time comment, “Gee, no one said anything about harm to the environment” would improve Ct performance
1/ Re the defense of Sup Ct “secrecy” b/c “they show their work" (actually, a lot of times their law clerks’ work, a relevant datum here): How is that different from Congress (hearings, reports, public debates, statutes) and the presidency (executive orders, signing statements)?...
Re pearl-clutching on the right about Sup Ct “leaks”: are there any other important institutions of governance where release of 10 year old information about a decisional process would be called a ‘leak”?
New episode of Supreme Betrayal: About Mike’s forthcoming book The Constitution Cannot Save Us—and about law clerks and constitutional theory:
supreme-betrayal-how-the-supreme-court-and-constitutional.simplecast.com/episodes/law...
open.spotify.com/episode/4I7O...
podcasts.apple.com/us/podcast/l...
… to work on after hours). Norms have clearly changed, but when? (Another norm change: Justices themselves used to cultivate relations w/ reporters [Potter Stewart eg] but don’t seem to these days—communication w/ reporters is thru intermediaries like law clerks, Fed Soc folks, etc.)
1/ My Sovietology on who leaked the Clean Power Plan file, a historical observation: I clerked in 1972-3 & had no compunctions abt post-service observations (after abt 5 yrs) but I don’t recall keeping any files from the chambers (in fact I’m pretty sure I didn’t take any Ct work to my apartment,,,
A discussion of the state of the art in comparative constitutional law, including questions about democratic backsliding and recovery (pre-Hungarian election): hls.harvard.edu/today/we-tho... (with a video of the full discussion embedded)
Informed only by reading NYT and Bluesky: There are 15 “principal officers” of executive departments. I count 5 sure votes against triggering 25th Amendment if Vance makes the first move: Hegseth, Blanche (if as Acting he counts), Kennedy, McMahon, Mullin. Are there others? (not “likely” but “sure”)
A genuine question, maybe for Anne Joseph O’Connell: For purposes of the 25th Amendment, is an Acting Attorney General a “principal officer” of an executive department?
Is it a good or a bad thing that no one appears to be talking about (openly) about the displacement of Donald Trump by a civilian-military junta, along the lines discussed by Ozan Varol in The Pro-Democratic Coup d’Etat?
From this week’s New Yorker: “2 stunningly petite brunettes.” Their petiteness was stunning (compare “2 stunning petite brunettes”). How, exactly? (adverb modifies adjective not noun; adjectives in sequence all modify ensuing noun)
Having been out doing errands I’m almost certainly not the first person to observe that “It’s a new world but it’s the same Constitution” is almost literally devoid of meaning because it could justify directly contradictory holdings.
More on mainstream media anti-progressive bias: (1) There will be a leading progressive candidate in Dem presidential primaries. (2) It's not going to be JB Pritzker or AOC. (3) MSM have no interest in explaining pt 2 or identifying other potential progressive candidates.
2/ that therefore what the administration needs is a public meaning to the effect that Congress has discretion to interpret the phrase (and delegate authority to interpret to the president), and that none of the revisionist takes offers that.
1/ Definitely not deep into the birthright citizenship flap but my fairly strong impression is that there are quite a few different "revisionist" takes on "subject to the jurisdiction" with some but not complete overlap, that none maps well on to the administration's position, ...
Starting dinner at the Library Room at Sketch in London. One of the most beautiful dining rooms I’ve been in. Food could mediocre (unlikely) & the experience would be worth it
I think you mean “increase.” And I sort of agree, but wd qualify w/r/t the immediate circumstances (have to historicize the general point—March 2026 is different from Feb 2025 & one hopes different from Feb 2029).
A heterodox view here? The principled case for birthright citizenship is complicated. Have to take into account ease/difficulty of naturalization + length of time before parental removal/deportation/voluntary departure (e.g. student visa folks) occurs--& maybe other stuff.
2/ A qualification: A Moyn mechanism was probably at work with some real effect in the "waiting for the Mueller Report" episode. That happened under pre-2025/6 political conditions and anti-Trumpists seem to have learned in ways that weaken the current power of the Moyn mechanism.
1/ In a "Moyn mechanism" anti-Trump legal mobilization reduces anti-Trump political mobilization. its strength depends on # of people affected. Ballpark guess: actual number of people subject to the Moyn mechanism is low enough that they could--and probably did--fit into the Yale Law faculty lounge.
A book launch discussion of Mark Tushnet & Bojan Bugaric, Constitutionalism and Its Discontents (pub date 7/28, U Chicago Press): www.youtube.com/watch?v=zJw6...
