https://simplecast.com Supreme Betrayal: How the Supreme Court and Constitutional Law Have Failed America Sitting in their marble palace, dressed in their black robes, Supreme Court Justices would like us to believe that they are wise and disinterested oracles dispensing words of truth and justice. Nothing could be further from the truth. Every episode week, Mark Tushnet and Mike Seidman, two renown constitutional law scholars, lift the curtain and show us how the men and women there who sit on the High Court have been manipulating us. 2024 Supreme Betrayal: How the Supreme Court and Constitutional Law Have Failed America, Louis Michael Seidman & Mark Tushnet en Wed, 11 Mar 2026 04:00:00 +0000 Thu, 12 Mar 2026 03:43:33 +0000 https://supreme-betrayal-how-the-supreme-court-and-constitutional.simplecast.com Supreme Betrayal: How the Supreme Court and Constitutional Law Have Failed America https://image.simplecastcdn.com/images/22d669a9-5d95-45dd-bc55-4dc4bbc4df02/a096181c-ae74-4c5b-885c-aad14bb5ad89/3000x3000/screenshot-2024-08-02-113438-003.jpg?aid=rss_feed https://supreme-betrayal-how-the-supreme-court-and-constitutional.simplecast.com episodic Sitting in their marble palace, dressed in their black robes, Supreme Court Justices would like us to believe that they are wise and disinterested oracles dispensing words of truth and justice. Nothing could be further from the truth. Every episode week, Mark Tushnet and Mike Seidman, two renown constitutional law scholars, lift the curtain and show us how the men and women there who sit on the High Court have been manipulating us. Mark Tushnet, Louis Michael Seidman false https://feeds.simplecast.com/v40cNvDG constitutional law, supreme court Mark Tushnet, Louis Michael Seidman seidman@georgetown.edu 8a0e7aa5-0ea8-40e0-9543-e8998f87c0af Tariffs! Wed, 11 Mar 2026 04:00:00 +0000 seidman@georgetown.edu (Mark Tushnet, Louis Michael Seidman) https://supreme-betrayal-how-the-supreme-court-and-constitutional.simplecast.com/episodes/tariffs-mmZP6ubm Tariffs! Mark Tushnet, Louis Michael Seidman 01:12:56 We take on the decision invalidating President Trump’s tariffs. Mike offers what he calls a democratic defense of a decision that would have, in his terms, preserved the status quo and let the tariffs go into effect, and offers a backup explanation that doing so would be more likely to generate a productive dialogue between Congress and the President possibly resulting in more precise delegations of authority to the President. Mark says that he doesn’t understand the democratic argument and isn’t convinced by the back up argument. Disagreement is more muted about the major questions doctrine, the second topic in the episode, where we agree that as a doctrine it empowers the courts rather than Congress, but that it might be a component of a common sense analysis of statutory language in its overall context. Finally we discuss possible explanations for how some of the justices voted, and here too a disagreement surfaces, with Mike arguing that what Mark calls superficial political explanations—country-club Republicans don’t like tariffs, Democratic appointees don’t like Trump—are important and Mark arguing that they are, well, superficial, and that interesting explanations for voting behavior lay deeper. We take on the decision invalidating President Trump’s tariffs. Mike offers what he calls a democratic defense of a decision that would have, in his terms, preserved the status quo and let the tariffs go into effect, and offers a backup explanation that doing so would be more likely to generate a productive dialogue between Congress and the President possibly resulting in more precise delegations of authority to the President. Mark says that he doesn’t understand the democratic argument and isn’t convinced by the back up argument. Disagreement is more muted about the major questions doctrine, the second topic in the episode, where we agree that as a doctrine it empowers the courts rather than Congress, but that it might be a component of a common sense analysis of statutory language in its overall context. Finally we discuss possible explanations for how some of the justices voted, and here too a disagreement surfaces, with Mike arguing that what Mark calls superficial political explanations—country-club Republicans don’t like tariffs, Democratic appointees don’t like Trump—are important and Mark arguing that they are, well, superficial, and that interesting explanations for voting behavior lay deeper. false full 38 a29a711a-9b42-493e-8539-f1da4c860b64 US Military Intervention Abroad--The Relevance of Statutes, the Constitution, and International Law Thu, 19 Feb 2026 05:00:00 +0000 seidman@georgetown.edu (Mark Tushnet, Louis Michael Seidman) https://supreme-betrayal-how-the-supreme-court-and-constitutional.simplecast.com/episodes/us-military-intervention-abroad-the-relevance-of-statutes-the-constitution-and-international-law-d_aETB3N US Military Intervention Abroad--The Relevance of Statutes, the Constitution, and International Law Mark Tushnet, Louis Michael Seidman 00:56:45 Pretty much everyone who looks into the matter knows that courts don’t enforce statutory, constitutional, or international law limits on the deployment of US military forces overseas. What are we to make of that fact? That we don’t need judicially enforceable limits on this sort of policy choice to get along reasonably well? That the limits work “behind the scenes” to affect the choices political actors make? Or, perhaps more disturbingly, that legal limits in this area are pretty much like legal limits everywhere: they effectively limit exercises of power by powerful people who want to comply with the law? Is it really true that, as Plato’s character Thrasymachus might be taken to suggest, law is merely the interest of the powerful? Pretty much everyone who looks into the matter knows that courts don’t enforce statutory, constitutional, or international law limits on the deployment of US military forces overseas. What are we to make of that fact? That we don’t need judicially enforceable limits on this sort of policy choice to get along reasonably well? That the limits work “behind the scenes” to affect the choices political actors make? Or, perhaps more disturbingly, that legal limits in this area are pretty much like legal limits everywhere: they effectively limit exercises of power by powerful people who want to comply with the law? Is it really true that, as Plato’s character Thrasymachus might be taken to suggest, law is merely the interest of the powerful? false full 37 47b8d644-f8c8-455d-9654-67c3649f77dd ICE and the Constitution (in the Courts and on the Streets) Sat, 7 Feb 2026 05:00:00 +0000 seidman@georgetown.edu (Mark Tushnet, Louis Michael Seidman) https://supreme-betrayal-how-the-supreme-court-and-constitutional.simplecast.com/episodes/ice-and-the-constitution-in-the-courts-and-on-the-streets-DZjh07V8 ICE and the Constitution (in the Courts and on the Streets) Mark Tushnet, Louis Michael Seidman 00:52:48 After telling the semi-salacious story of the attempted assassination of Supreme Court Justice Stephen Field in 1889 we explore the implications of the Supreme Court case that dealt with the attempt for the possibility of state prosecutions of ICE and CBP officers for the killings of Renee Nicole Good and Alex Pretti. That leads us to a discussion of the costs and benefits of using the rhetoric of “unconstitutionality” in political protests against ICE, in which we elaborate on some of the disagreements between us that we introduced in earlier episodes. After telling the semi-salacious story of the attempted assassination of Supreme Court Justice Stephen Field in 1889 we explore the implications of the Supreme Court case that dealt with the attempt for the possibility of state prosecutions of ICE and CBP officers for the killings of Renee Nicole Good and Alex Pretti. That leads us to a discussion of the costs and benefits of using the rhetoric of “unconstitutionality” in political protests against ICE, in which we elaborate on some of the disagreements between us that we introduced in earlier episodes. false full 36 e4b17943-cc8a-4deb-bad6-174f7d0bc6ef Sedition and the Democrats' Video on Refusing to Obey Unlawful Orders Fri, 16 Jan 2026 05:00:00 +0000 seidman@georgetown.edu (Mark Tushnet, Louis Michael Seidman) https://supreme-betrayal-how-the-supreme-court-and-constitutional.simplecast.com/episodes/sedition-and-the-democrats-video-on-refusing-to-obey-unlawful-orders-fP3cni8J Sedition and the Democrats' Video on Refusing to Obey Unlawful Orders Mark Tushnet, Louis Michael Seidman 01:09:16 Could Senator Mark Kelly successfully be prosecuted for sedition? Not under current law as developed by the Supreme Court. Tushnet presses Seidman on his opposition to the Court’s invocation of the Constitution to prevent democratically elected governments from enacting whatever policies the people want—even in connection with speech restrictions. Seidman sticks to his guns and says that, though prosecuting Kelly would be profoundly unwise the Supreme Court shouldn’t block a prosecution by invoking the First Amendment. From there we clarify our long-standing disagreements, ending with Tushnet’s observation that when the Supreme Court is hitting on all cylinders it contributes to democratic self-governance and Seidman’s contention that the Court misfires so often that we ought to junk the car. Could Senator Mark Kelly successfully be prosecuted for sedition? Not under current law as developed by the Supreme Court. Tushnet presses Seidman on his opposition to the Court’s invocation of the Constitution to prevent democratically elected governments from enacting whatever policies the people want—even in connection with speech restrictions. Seidman sticks to his guns and says that, though prosecuting Kelly would be profoundly unwise the Supreme Court shouldn’t block a prosecution by invoking the First Amendment. From there we clarify our long-standing disagreements, ending with Tushnet’s observation that when the Supreme Court is hitting on all cylinders it contributes to democratic self-governance and Seidman’s contention that the Court misfires so often that we ought to junk the car. false full 35 eb7d03ec-fac6-4dae-b5e7-a85a6783f2bf A Conversation with David Luban Fri, 19 Dec 2025 05:00:00 +0000 seidman@georgetown.edu (Mark Tushnet, Louis Michael Seidman) https://supreme-betrayal-how-the-supreme-court-and-constitutional.simplecast.com/episodes/a-conversation-with-david-luban-jbjGC0fD A Conversation with David Luban Mark Tushnet, Louis Michael Seidman 01:00:36 Our guest is David Luban, a distinguished legal philosopher who has written widely about military law and ethics. We use the Trump administration's drone strikes on "drug boats" as the vehicle for talking about the tension--such as it may be--between law and hierarchical authority, for example when ordinary soldiers are instructed that they must disregard unlawful orders. As usual with us, we try to show that the issues are much more complicated than they are typically presented as being--to the point that we end with a brief (and inadequate) discussion of Joseph Raz's ideas about law as offering "exclusionary reasons" for acting without regard to your own evaluation of the rightness of what you're being told to do. Our guest is David Luban, a distinguished legal philosopher who has written widely about military law and ethics. We use the Trump administration's drone strikes on "drug boats" as the vehicle for talking about the tension--such as it may be--between law and hierarchical authority, for example when ordinary soldiers are instructed that they must disregard unlawful orders. As usual with us, we try to show that the issues are much more complicated than they are typically presented as being--to the point that we end with a brief (and inadequate) discussion of Joseph Raz's ideas about law as offering "exclusionary reasons" for acting without regard to your own evaluation of the rightness of what you're being told to do. false full 34 016ed790-3170-4d9f-aa9f-c134269b5f70 A Conversation with Genevieve Lakier Fri, 5 Dec 2025 05:00:00 +0000 seidman@georgetown.edu (Mark Tushnet, Louis Michael Seidman) https://supreme-betrayal-how-the-supreme-court-and-constitutional.simplecast.com/episodes/a-conversation-with-genevieve-lakier-rd_9dQg4 A Conversation with Genevieve Lakier Mark Tushnet, Louis Michael Seidman 00:58:25 We have a conversation with Genevieve Lakier about the First Amendment and the courts in our current situation. She defends recourse to the courts; we are as usual more skeptical. We go into some aspects of the political economy of major media, emphasizing the problems created by media consolidation and the difficulty of dealing with those problems not merely because of the normative issues we raised in discussing Jimmy Kimmel but also because the political-economic causes of consolidation play out as well in structuring the Supreme Court. And we talk about the distinction between the First Amendment as law and the First Amendment as a component of a general political culture that shapes both what the courts do and how ordinary politics plays itself out in expression-sensitive contexts. We have a conversation with Genevieve Lakier about the First Amendment and the courts in our current situation. She defends recourse to the courts; we are as usual more skeptical. We go into some aspects of the political economy of major media, emphasizing the problems created by media consolidation and the difficulty of dealing with those problems not merely because of the normative issues we raised in discussing Jimmy Kimmel but also because the political-economic causes of consolidation play out as well in structuring the Supreme Court. And we talk about the distinction between the First Amendment as law and the First Amendment as a component of a general political culture that shapes both what the courts do and how ordinary politics plays itself out in expression-sensitive contexts. false full 33 26315058-c7ce-4bb0-ab02-615b7c4c83a1 The Voting Rights Case and the Constitution After Trump Sun, 23 Nov 2025 05:00:00 +0000 seidman@georgetown.edu (Mark Tushnet, Louis Michael Seidman) https://supreme-betrayal-how-the-supreme-court-and-constitutional.simplecast.com/episodes/the-voting-rights-case-and-the-constitution-after-trump-f0JM1w3S The Voting Rights Case and the Constitution After Trump Mark Tushnet, Louis Michael Seidman 00:39:47 After some reflections on how the oral arguments in the tariff case affect our expectations about what the Court might do, we turn to the Court’s pending decision in a case challenging the constitutionality of the key remaining provision of the 1965 Voting Rights Act. We offer what we hope are some more in-depth and analytic comments on the doctrines in play in the case and (as usual!) highlight the ways in which the arguments against the statute are rife with internal tensions. We conclude with some unoriginal observations about the political implications of a decision to invalidate the Act and with what we hope are some more original observations about how to situate the Court’s likely action in the kind of broader account of American political development that we’ve offered sporadically in the podcast and in a more focused way in our episodes on the Constitution after Trump. After some reflections on how the oral arguments in the tariff case affect our expectations about what the Court might do, we turn to the Court’s pending decision in a case challenging the constitutionality of the key remaining provision of the 1965 Voting Rights Act. We offer what we hope are some more in-depth and analytic comments on the doctrines in play in the case and (as usual!) highlight the ways in which the arguments against the statute are rife with internal tensions. We conclude with some unoriginal observations about the political implications of a decision to invalidate the Act and with what we hope are some more original observations about how to situate the Court’s likely action in the kind of broader account of American political development that we’ve offered sporadically in the podcast and in a more focused way in our episodes on the Constitution after Trump. false full 32 b0eaa24e-555c-4be4-bb8c-7b59eeaf6aca Constitutionalism After Trump Part Two Fri, 14 Nov 2025 05:00:00 +0000 seidman@georgetown.edu (Mark Tushnet, Louis Michael Seidman) https://supreme-betrayal-how-the-supreme-court-and-constitutional.simplecast.com/episodes/constitutionalism-after-trump-part-two-8JrQQpnw Constitutionalism After Trump Part Two Mark Tushnet, Louis Michael Seidman 01:01:47 We continue our speculation about constitutionalism after Trump (after some mundane observations about the 2025 elections), by broadening our lens to include some thoughts about what progressives might do to present appealing visions of an egalitarian and multicultural society that’s part of our heritage. We disagree a bit about the level at which the conversation should be pitched and then turn to some suggestions about “principled compromises” that progressives could offer to appeal to some people who at present find MAGA-ism the best thing available to them. The compromises deal with public support for education in religiously affiliated schools and some aspects of trans rights. We disagree about what the proposed compromises, with Tushnet arguing that they either don’t give MAGA supporters anything they can’t get from the Supreme Court or mistakenly treat issues as serious policy proposals when they are, in the jargon, performative. We don’t resolve our disagreements but promise to come back to them later! We continue our speculation about constitutionalism after Trump (after some mundane observations about the 2025 elections), by broadening our lens to include some thoughts about what progressives might do to present appealing visions of an egalitarian and multicultural society that’s part of our heritage. We disagree a bit about the level at which the conversation should be pitched and then turn to some suggestions about “principled compromises” that progressives could offer to appeal to some people who at present find MAGA-ism the best thing available to them. The compromises deal with public support for education in religiously affiliated schools and some aspects of trans rights. We disagree about what the proposed compromises, with Tushnet arguing that they either don’t give MAGA supporters anything they can’t get from the Supreme Court or mistakenly treat issues as serious policy proposals when they are, in the jargon, performative. We don’t resolve our disagreements but promise to come back to them later! false full 31 9d47edc8-9548-4817-a5ef-21bf4083efd1 Conversation with Richard Re Tue, 4 Nov 2025 05:00:00 +0000 seidman@georgetown.edu (Mark Tushnet, Louis Michael Seidman) https://supreme-betrayal-how-the-supreme-court-and-constitutional.simplecast.com/episodes/conversation-with-richard-re-Owf_RKdX Conversation with Richard Re Mark Tushnet, Louis Michael Seidman 00:53:30 Our conversation with Richard Re focuses on his Foreword to the Harvard Law Review’s annual Supreme Court Review. The Foreword argues that the Roberts Court today is a conservative version of the Warren Court whose decisions are as supported today or perhaps even better supported today by a political majority as were the Warren Court’s decisions. We suggest that his argument is a domesticated version of the more politically engaged analysis of Supreme Court decisions offered by people associated with Critical Legal Studies—and that the domestication can’t conceal the fundamentally political nature of the Court’s decisions (today or during the Warren Court era). Re in turn disagrees! Our conversation with Richard Re focuses on his Foreword to the Harvard Law Review’s annual Supreme Court Review. The Foreword argues that the Roberts Court today is a conservative version of the Warren Court whose decisions are as supported today or perhaps even better supported today by a political majority as were the Warren Court’s decisions. We suggest that his argument is a domesticated version of the more politically engaged analysis of Supreme Court decisions offered by people associated with Critical Legal Studies—and that the domestication can’t conceal the fundamentally political nature of the Court’s decisions (today or during the Warren Court era). Re in turn disagrees! false full 30 6aa1216c-0b0a-456c-8611-a324ce802c2f Constitutionalism After Trump Part One Fri, 31 Oct 2025 04:00:00 +0000 seidman@georgetown.edu (Mark Tushnet, Louis Michael Seidman) https://supreme-betrayal-how-the-supreme-court-and-constitutional.simplecast.com/episodes/constitutionalism-after-trump-part-one-HwJzXlpx Constitutionalism After Trump Part One Mark Tushnet, Louis Michael Seidman 00:43:27 If we manage to extricate ourselves from our current constitutional plight, what might things look like? Or, alternatively, what sorts of constitutionally inflected policies should Democrats offer as part of their political effort to defeat Trumpism? We argue pretty forcefully against what we call “restorationism,” a program that would simply reinstitute the constitutional agenda that MAGA constitutionalism rejects. This episode focuses on the role that skepticism about expertise plays in MAGA constitutionalism. After describing how that skepticism is tied to the extremely strong theory of the unitary executive that the Trump administration advances, we offer some thoughts about how progressive policies—particularly with respect to the design of the institutions of the administrative state—could combine some degree of justified skepticism with greater popular participation in lawmakng in ways that some MAGA voters as well as many progressives might find appealing. If we manage to extricate ourselves from our current constitutional plight, what might things look like? Or, alternatively, what sorts of constitutionally inflected policies should Democrats offer as part of their political effort to defeat Trumpism? We argue pretty forcefully against what we call “restorationism,” a program that would simply reinstitute the constitutional agenda that MAGA constitutionalism rejects. This episode focuses on the role that skepticism about expertise plays in MAGA constitutionalism. After describing how that skepticism is tied to the extremely strong theory of the unitary executive that the Trump administration advances, we offer some thoughts about how progressive policies—particularly with respect to the design of the institutions of the administrative state—could combine some degree of justified skepticism with greater popular participation in lawmakng in ways that some MAGA voters as well as many progressives might find appealing. false full 29 37df9d94-1b82-4923-9cc8-b97fc4731da5 The Jimmy Kimmel Kerfuffle and How to Think About It Fri, 17 Oct 2025 04:00:00 +0000 seidman@georgetown.edu (Mark Tushnet, Louis Michael Seidman) https://supreme-betrayal-how-the-supreme-court-and-constitutional.simplecast.com/episodes/the-jimmy-kimmel-kerfuffle-and-how-to-think-about-it-vhj8dExr The Jimmy Kimmel Kerfuffle and How to Think About It Mark Tushnet, Louis Michael Seidman 00:30:43 We talk about the Jimmy Kimmel episode, a small victory in the fight against Trumpism. We range more widely, though, in identifying no fewer than five groups who have competing First Amendment interests in having Kimmel on or off the airwaves, which makes figuring out what the First Amendment “means” in this setting. We emphasize the interests of broadcasters in choosing what to air and the interests of potential listeners in hearing—and preventing others from hearing—what they want. Any government intervention supports the free-speech interests of one or another group and undermines the free-speech interests of other groups. After discussing the way in which New Deal constitutional doctrine tried to separate economic regulation from regulation of fundamental rights, we discuss the relation between property rights and the ability to exercise your right to free expression, we end with a discussion of the possibility of antitrust regulation of large media corporations, which was implicated in the Kimmel episode. Reconciling antitrust regulation of the sort progressives want with existing constitutional doctrine takes some serious analytic work, which progressives ought to be doing now. We talk about the Jimmy Kimmel episode, a small victory in the fight against Trumpism. We range more widely, though, in identifying no fewer than five groups who have competing First Amendment interests in having Kimmel on or off the airwaves, which makes figuring out what the First Amendment “means” in this setting. We emphasize the interests of broadcasters in choosing what to air and the interests of potential listeners in hearing—and preventing others from hearing—what they want. Any government intervention supports the free-speech interests of one or another group and undermines the free-speech interests of other groups. After discussing the way in which New Deal constitutional doctrine tried to separate economic regulation from regulation of fundamental rights, we discuss the relation between property rights and the ability to exercise your right to free expression, we end with a discussion of the possibility of antitrust regulation of large media corporations, which was implicated in the Kimmel episode. Reconciling antitrust regulation of the sort progressives want with existing constitutional doctrine takes some serious analytic work, which progressives ought to be doing now. false full 28 d3e81af2-a11c-47cb-8f85-4ef7f2172fb3 Birthright Citizenship Fri, 3 Oct 2025 04:00:00 +0000 seidman@georgetown.edu (Mark Tushnet, Louis Michael Seidman) https://supreme-betrayal-how-the-supreme-court-and-constitutional.simplecast.com/episodes/birthright-citizenship-ExN3n2qB Birthright Citizenship Mark Tushnet, Louis Michael Seidman 00:42:45 Why are the birthright citizenship cases both not such a big deal and a big deal? After going through the arguments for the Trump administration’s position in some detail (the arguments against it are so obvious that we don’t spend much time on them), we situate the cases in the administration’s larger policy and ideological agendas: from a policy point of view they aren’t that big a deal, but from an ideological one they might be. Why are the birthright citizenship cases both not such a big deal and a big deal? After going through the arguments for the Trump administration’s position in some detail (the arguments against it are so obvious that we don’t spend much time on them), we situate the cases in the administration’s larger policy and ideological agendas: from a policy point of view they aren’t that big a deal, but from an ideological one they might be. false full 27 6a88a939-cee9-4377-8524-f10e1fbdaea3 A Conversation with Will Baude Sat, 27 Sep 2025 04:00:00 +0000 seidman@georgetown.edu (Mark Tushnet, Louis Michael Seidman) https://supreme-betrayal-how-the-supreme-court-and-constitutional.simplecast.com/episodes/a-conversation-with-will-baude-tdzTqLV_ A Conversation with Will Baude Mark Tushnet, Louis Michael Seidman 00:50:32 Our conversation with Will Baude covers his ideas about originalism as "our law" and the implications of his position for a constitution--ours, perhaps--that isn't normatively attractive overall. Our conversation with Will Baude covers his ideas about originalism as "our law" and the implications of his position for a constitution--ours, perhaps--that isn't normatively attractive overall. false full 26 735e134f-e9e1-4b63-9660-0502231d7404 Recap and Trump's Tariffs Mon, 15 Sep 2025 04:00:00 +0000 seidman@georgetown.edu (Mark Tushnet, Louis Michael Seidman) https://supreme-betrayal-how-the-supreme-court-and-constitutional.simplecast.com/episodes/recap-and-trumps-tariffs-edfexoby-vMLlzC_d Recap and Trump's Tariffs Mark Tushnet, Louis Michael Seidman 00:44:34 We pick up after our summer break with a recap of our arguments about constitutional theory. Then we discuss the pending Supreme Court decision about President Trump’s power to impose tariffs, getting into some weeds that most popular commentary avoids, including a lot of detail about the major questions doctrine. We pick up after our summer break with a recap of our arguments about constitutional theory. Then we discuss the pending Supreme Court decision about President Trump’s power to impose tariffs, getting into some weeds that most popular commentary avoids, including a lot of detail about the major questions doctrine. false full 25 205e6a7c-b330-49d4-a492-687c8c9d635d Constitutional Criminal Procedure Sun, 3 Aug 2025 04:00:00 +0000 seidman@georgetown.edu (Mark Tushnet, Louis Michael Seidman) https://supreme-betrayal-how-the-supreme-court-and-constitutional.simplecast.com/episodes/constitutional-criminal-procedure-7gldr43c-8mlkfOEv Constitutional Criminal Procedure Mark Tushnet, Louis Michael Seidman 00:59:22 Today we apply our way of thinking about the Constitution—what we’ve been calling constitutional theory—to a topic that isn’t usually discussed in those terms even though it gets a lot of attention: constitutional criminal procedure, focusing on police practices like stop-and-frisk and on the Miranda warnings. As usual our questions are about the connection between judicial (and political and bureaucratic) regulation of police practices and the people’s ability to govern itself. And as usual we divide (a bit) over whether courts have made things better, whether they’ve actively made things worse by exacerbating the race-based inequalities produced by the politics of crime, and whether the courts might come up with better ways of regulating police conduct that would enhance self-government. Today we apply our way of thinking about the Constitution—what we’ve been calling constitutional theory—to a topic that isn’t usually discussed in those terms even though it gets a lot of attention: constitutional criminal procedure, focusing on police practices like stop-and-frisk and on the Miranda warnings. As usual our questions are about the connection between judicial (and political and bureaucratic) regulation of police practices and the people’s ability to govern itself. And as usual we divide (a bit) over whether courts have made things better, whether they’ve actively made things worse by exacerbating the race-based inequalities produced by the politics of crime, and whether the courts might come up with better ways of regulating police conduct that would enhance self-government. false full 24 4428a97f-430e-42f1-b3bd-5d15aa3b9cbf Current Events, Resistance, and Jury Nullification Mon, 21 Jul 2025 04:00:00 +0000 seidman@georgetown.edu (Mark Tushnet, Louis Michael Seidman) https://supreme-betrayal-how-the-supreme-court-and-constitutional.simplecast.com/episodes/current-events-resistance-and-jury-nullification-qnzahttg-kCRMfime Current Events, Resistance, and Jury Nullification Mark Tushnet, Louis Michael Seidman 01:00:29 This current events episode uses ICE arrests of public officials and protestors as the vehicle for a discussion of jury nullification as a constitutional or political practice. We begin with the story of abolitionist interference with the renditions—a word in the news again—of fugitives from enslavement as authorized by the 1850 Fugitive Slave Act. We use jury nullification to explore the opposition between “law” and “non-law” in political practice. We also discuss more briefly some aspects of the First Amendment defenses Harvard University is mounting against the Trump administration’s attacks—and reflect even more briefly on the importance of preserving civil society’s institutions as proto-authoritarians seek to move their agenda forward. This current events episode uses ICE arrests of public officials and protestors as the vehicle for a discussion of jury nullification as a constitutional or political practice. We begin with the story of abolitionist interference with the renditions—a word in the news again—of fugitives from enslavement as authorized by the 1850 Fugitive Slave Act. We use jury nullification to explore the opposition between “law” and “non-law” in political practice. We also discuss more briefly some aspects of the First Amendment defenses Harvard University is mounting against the Trump administration’s attacks—and reflect even more briefly on the importance of preserving civil society’s institutions as proto-authoritarians seek to move their agenda forward. false full 23 a47e27d1-a4b6-4be2-b85b-e43de0cd6987 The Anti-Oligarchy Constitution: A Conversation Fri, 4 Jul 2025 13:00:00 +0000 seidman@georgetown.edu (Mark Tushnet, Louis Michael Seidman) https://supreme-betrayal-how-the-supreme-court-and-constitutional.simplecast.com/episodes/the-anti-oligarchy-constitution-a-conversation-yIBv4r0z The Anti-Oligarchy Constitution: A Conversation Mark Tushnet, Louis Michael Seidman 01:04:38 Joseph Fishkin and William Forbath join us to discuss their book The Anti-Oligarchy Constitution. We talk about what their book's title describes, why they think it matters to describe it as a "constitutional" position rather than a "mere" set of policy prescriptions, the importance of historical traditions in thinking about the political use of the word "constitutional," the advantages and disadvantages of using that word as an intensifier, and more (including a digression of the possibility of "secession" or a division of the United States into "blue" and "red" nations)." Joseph Fishkin and William Forbath join us to discuss their book The Anti-Oligarchy Constitution. We talk about what their book's title describes, why they think it matters to describe it as a "constitutional" position rather than a "mere" set of policy prescriptions, the importance of historical traditions in thinking about the political use of the word "constitutional," the advantages and disadvantages of using that word as an intensifier, and more (including a digression of the possibility of "secession" or a division of the United States into "blue" and "red" nations)." false full 22 ce62db5a-df49-4a6d-b104-7149fa52c4c3 Mike's Version of Constitutional Theory (or Anti-Theory) Fri, 27 Jun 2025 21:09:41 +0000 seidman@georgetown.edu (Mark Tushnet, Louis Michael Seidman) https://supreme-betrayal-how-the-supreme-court-and-constitutional.simplecast.com/episodes/mikes-version-of-constitutional-theory-or-anti-theory-O6F8SQPC Mike's Version of Constitutional Theory (or Anti-Theory) Mark Tushnet, Louis Michael Seidman 01:07:02 Mike gets a chance to lay out his approach. We begin with a longish discussion of the Emancipation Proclamation: Was it merely a “bill of lading”/military measure (Mark) or an extraconstitutional action justified because it was right (Mike)—or both? Mike then develops his approach by distinguishing between simple justice and legal justice and argues that legal justice interferes with the accomplishment of simple justice by trying to shut down disagreements about simple justice requires with an authoritarian “Get over it!” His alternative is the development of norms of reciprocity, mutual respect, compromise, and more to guide the temporary resolution of such disagreements through ordinary politics. Mark snipes along the way, wondering whether those norms can be retrieved from today’s swamps of ordinary politics. Mike gets a chance to lay out his approach. We begin with a longish discussion of the Emancipation Proclamation: Was it merely a “bill of lading”/military measure (Mark) or an extraconstitutional action justified because it was right (Mike)—or both? Mike then develops his approach by distinguishing between simple justice and legal justice and argues that legal justice interferes with the accomplishment of simple justice by trying to shut down disagreements about simple justice requires with an authoritarian “Get over it!” His alternative is the development of norms of reciprocity, mutual respect, compromise, and more to guide the temporary resolution of such disagreements through ordinary politics. Mark snipes along the way, wondering whether those norms can be retrieved from today’s swamps of ordinary politics. false full 21 9c15fbc0-398e-4966-bdfe-33d40af102d3 Tushnet's Approach Concluded At Last! Fri, 6 Jun 2025 04:00:00 +0000 seidman@georgetown.edu (Mark Tushnet, Louis Michael Seidman) https://supreme-betrayal-how-the-supreme-court-and-constitutional.simplecast.com/episodes/tushnets-approach-concluded-at-last-2eWIiAOX Tushnet's Approach Concluded At Last! Mark Tushnet, Louis Michael Seidman 01:15:07 The final (!) episode laying out Tushnet’s “craft” account of what judicial review done well looks like. We discuss Tushnet’s argument that good judges use legal reasoning, not direct appeals to justice, to explain and justify what they do. His shorthand is that, just as a well-designed legislative process gives everyone a fair shot at getting their policies adopted and so produces outcomes that those who lose out should and typically do accept, so a well-performed judicial function gives everyone a fair shot at making reasoned arguments that judges evaluate on the merits. And that means, for him, that good judges engage in legal reasoning, working with the plumbing of our constitutional system. Seidman argues that legal reasoning is so far removed from the way ordinary people think about the issues raised in constitutional cases that the judges Tushnet admires or hopes to see on the Court can’t resolve constitutional controversies in a way that those whose positions are rejected should or are likely to accept. Along the way we talk about the mindset judges should bring to their task, criticizing Justice O’Connor’s slogan, “Sometimes Wrong but Never in Doubt.” The final (!) episode laying out Tushnet’s “craft” account of what judicial review done well looks like. We discuss Tushnet’s argument that good judges use legal reasoning, not direct appeals to justice, to explain and justify what they do. His shorthand is that, just as a well-designed legislative process gives everyone a fair shot at getting their policies adopted and so produces outcomes that those who lose out should and typically do accept, so a well-performed judicial function gives everyone a fair shot at making reasoned arguments that judges evaluate on the merits. And that means, for him, that good judges engage in legal reasoning, working with the plumbing of our constitutional system. Seidman argues that legal reasoning is so far removed from the way ordinary people think about the issues raised in constitutional cases that the judges Tushnet admires or hopes to see on the Court can’t resolve constitutional controversies in a way that those whose positions are rejected should or are likely to accept. Along the way we talk about the mindset judges should bring to their task, criticizing Justice O’Connor’s slogan, “Sometimes Wrong but Never in Doubt.” false full 20 d35c21c8-8482-4f28-a510-5718d76daab7 A Convefrsation with Aziz Rana Tue, 3 Jun 2025 04:00:00 +0000 seidman@georgetown.edu (Mark Tushnet, Louis Michael Seidman) https://supreme-betrayal-how-the-supreme-court-and-constitutional.simplecast.com/episodes/a-convefrsation-with-aziz-rana-fYZVaUpl A Convefrsation with Aziz Rana Mark Tushnet, Louis Michael Seidman 01:04:00 We have our first guest! We engage in a wide-ranging conversation with Aziz Rana, jumping off from his important book The Constitutional Bind: How Americans Came to Idolize a Document That Fails Them (which we urge you to buy and read). Rana’s book ends before the turn of this century, and our conversation both extends the ideas he develops there (particularly about the connection between the role of the US on the international scene and the US constitutional creed), and takes up his and our thinking about contemporary issues. We have our first guest! We engage in a wide-ranging conversation with Aziz Rana, jumping off from his important book The Constitutional Bind: How Americans Came to Idolize a Document That Fails Them (which we urge you to buy and read). Rana’s book ends before the turn of this century, and our conversation both extends the ideas he develops there (particularly about the connection between the role of the US on the international scene and the US constitutional creed), and takes up his and our thinking about contemporary issues. false full 19 56908c89-bcc6-4a82-bf7c-a5ec858e03e4 More Current Events--and More Theory Too Mon, 21 Apr 2025 04:00:00 +0000 seidman@georgetown.edu (Mark Tushnet, Louis Michael Seidman) https://supreme-betrayal-how-the-supreme-court-and-constitutional.simplecast.com/episodes/more-current-events-and-more-theory-too-IHDO8tiP More Current Events--and More Theory Too Mark Tushnet, Louis Michael Seidman 00:50:35 Another discussion of current events and constitutional theory. We distinguish between “small bore” and “large bore” challenges to Trump’s agenda—the former dealing with individual injustices and the latter with more comprehensive programs like tariffs—and suggest that courts might do something about the former but are less likely to do anything about the latter. We disagree as usual about the potential political impact of interventions in small bore cases. And we wrap the episode up with a discussion of whether Trump could serve a third term through creative constitutional interpretation or a workaround—and end up with arguing over the connection between some embedded norms like a “no third term” norm and the Constitution itself. More about that to come. Another discussion of current events and constitutional theory. We distinguish between “small bore” and “large bore” challenges to Trump’s agenda—the former dealing with individual injustices and the latter with more comprehensive programs like tariffs—and suggest that courts might do something about the former but are less likely to do anything about the latter. We disagree as usual about the potential political impact of interventions in small bore cases. And we wrap the episode up with a discussion of whether Trump could serve a third term through creative constitutional interpretation or a workaround—and end up with arguing over the connection between some embedded norms like a “no third term” norm and the Constitution itself. More about that to come. false full 18 b4505857-f3ba-44ba-98db-d1f0bc0d832a Current Events Again--and Some Theory Too Mon, 31 Mar 2025 04:00:00 +0000 seidman@georgetown.edu (Mark Tushnet, Louis Michael Seidman) https://supreme-betrayal-how-the-supreme-court-and-constitutional.simplecast.com/episodes/current-events-again-and-some-theory-too-gRvs9EZq Current Events Again--and Some Theory Too Mark Tushnet, Louis Michael Seidman 00:49:27 This current events episode uses the Alien Enemies Act case before Judge Boasberg as our vehicle for examining what constitutional theory can contribute to understanding fast-moving current events. We argue about how nervous we should be about Seidman’s arguments for constitutional disobedience in our current context and about the contributions, if any, constitutional litigation can make to alleviating—or exacerbating—what’s going on. We conclude with a description of what commentators might mean when they describe Trump’s actions as “illegal,” and discuss why such descriptions might not be as helpful as you might initially think. This current events episode uses the Alien Enemies Act case before Judge Boasberg as our vehicle for examining what constitutional theory can contribute to understanding fast-moving current events. We argue about how nervous we should be about Seidman’s arguments for constitutional disobedience in our current context and about the contributions, if any, constitutional litigation can make to alleviating—or exacerbating—what’s going on. We conclude with a description of what commentators might mean when they describe Trump’s actions as “illegal,” and discuss why such descriptions might not be as helpful as you might initially think. false full 17 bb0e66e4-4480-480a-bf30-7d3b9a4f7772 Still More on Constitutional Foundations Tue, 25 Mar 2025 19:15:45 +0000 seidman@georgetown.edu (Mark Tushnet, Louis Michael Seidman) https://supreme-betrayal-how-the-supreme-court-and-constitutional.simplecast.com/episodes/still-more-on-constitutional-foundations-6sdpHJeK Still More on Constitutional Foundations Mark Tushnet, Louis Michael Seidman 01:10:40 With the idea of constitutional "workarounds” as a focal point, we describe the quite large areas of agreement between us about democratic constitutions in general and about the US Constitution specifically and try to clarify where our disagreements lie. The disagreements are mostly about how the US constitutional system functions today and partly about what a good democratic constitution building upon actual US experience would look like. With the idea of constitutional "workarounds” as a focal point, we describe the quite large areas of agreement between us about democratic constitutions in general and about the US Constitution specifically and try to clarify where our disagreements lie. The disagreements are mostly about how the US constitutional system functions today and partly about what a good democratic constitution building upon actual US experience would look like. false full 16 eada9d76-2e77-4130-9e8b-c2cd779b3b31 The Foundations of the US Constitution--Seidman's Approach Tue, 11 Mar 2025 04:00:00 +0000 seidman@georgetown.edu (Mark Tushnet, Louis Michael Seidman) https://supreme-betrayal-how-the-supreme-court-and-constitutional.simplecast.com/episodes/the-foundations-of-the-us-constitution-seidmans-approach-4KHXECZJ The Foundations of the US Constitution--Seidman's Approach Mark Tushnet, Louis Michael Seidman 00:48:05 This episode lays out a different way of thinking about the US Constitution as of 2025. (How different it is from Tushnet’s is something we discuss in the episode and will continue to worry over.) Seidman begins by describing what the Constitution as written in 1789 was designed to do then—set up a government, set out some compromises between then-important political forces in a sort of peace treaty, and state some general aspirations the new government might hope to advance. He then asks whether adhering to the Constitution of 1789, particularly by treating it as in general enforceable by the courts, is necessary—or even useful—as a way of keeping the government running, maintaining social order in the face of disagreement, and guiding the nation toward implementing attractive values. His answer is, “Decidedly not.” Along the way Tushnet offers some support and some criticisms, and the discussion opens the way to exploring our differences in more detail in a subsequent episode. This episode lays out a different way of thinking about the US Constitution as of 2025. (How different it is from Tushnet’s is something we discuss in the episode and will continue to worry over.) Seidman begins by describing what the Constitution as written in 1789 was designed to do then—set up a government, set out some compromises between then-important political forces in a sort of peace treaty, and state some general aspirations the new government might hope to advance. He then asks whether adhering to the Constitution of 1789, particularly by treating it as in general enforceable by the courts, is necessary—or even useful—as a way of keeping the government running, maintaining social order in the face of disagreement, and guiding the nation toward implementing attractive values. His answer is, “Decidedly not.” Along the way Tushnet offers some support and some criticisms, and the discussion opens the way to exploring our differences in more detail in a subsequent episode. false full 15 522410d9-7dd9-4e0d-895c-e0b2eb8929c3 Why Have a Constitution--An Introduction to Tushnet's Take Sat, 1 Mar 2025 01:39:05 +0000 seidman@georgetown.edu (Mark Tushnet, Louis Michael Seidman) https://supreme-betrayal-how-the-supreme-court-and-constitutional.simplecast.com/episodes/why-have-a-constitution-an-introduction-to-tushnets-take-HJiVY4ps Why Have a Constitution--An Introduction to Tushnet's Take Mark Tushnet, Louis Michael Seidman 00:53:22 After our discussion of the first month of the Trump administration and constitutional law, we return to our exploration of constitutional theory—this time turning away from theories of interpretation to theories about constitutional foundations: What’s the best story about why people adopt constitutions? This episode begins to examine stories that say that constitutions are good ways—maybe the only way—to work out how to peacefully resolve their disagreements about what ought to be done through what we call ordinary politics. We look at some reasons for (and against) entrenching the “rules about ruling”—and expose some disagreements about constitutional foundations that we’ll get into in later episodes. After our discussion of the first month of the Trump administration and constitutional law, we return to our exploration of constitutional theory—this time turning away from theories of interpretation to theories about constitutional foundations: What’s the best story about why people adopt constitutions? This episode begins to examine stories that say that constitutions are good ways—maybe the only way—to work out how to peacefully resolve their disagreements about what ought to be done through what we call ordinary politics. We look at some reasons for (and against) entrenching the “rules about ruling”—and expose some disagreements about constitutional foundations that we’ll get into in later episodes. false full 14 95f724d4-5503-4e70-b53f-be93d0f634b0 The Trump Administraton One Month In--Crisis, Revolution, What? Fri, 21 Feb 2025 15:38:40 +0000 seidman@georgetown.edu (Mark Tushnet, Louis Michael Seidman) https://supreme-betrayal-how-the-supreme-court-and-constitutional.simplecast.com/episodes/the-trump-administraton-one-month-in-crisis-revolution-what-MVnG2jL9 The Trump Administraton One Month In--Crisis, Revolution, What? Mark Tushnet, Louis Michael Seidman 00:51:12 This is a “current events” episode. We discuss whether, one month in, we should think about the Trump administration as initiating a constitution crisis or a constitutional revolution--regime change at home. Should we think of courts as the opposition’s Obi-Wan Kenobi—its only hope—or as doing nothing more than putting speed bumps in Trump’s way (and doing that might be good enough). Moving outside our wheelhouse we also offer some amateur political analysis of the conditions for Trump’s political success or failure with a project of political transformation. This is a “current events” episode. We discuss whether, one month in, we should think about the Trump administration as initiating a constitution crisis or a constitutional revolution--regime change at home. Should we think of courts as the opposition’s Obi-Wan Kenobi—its only hope—or as doing nothing more than putting speed bumps in Trump’s way (and doing that might be good enough). Moving outside our wheelhouse we also offer some amateur political analysis of the conditions for Trump’s political success or failure with a project of political transformation. false full 13 ccbe18de-0e29-4924-839d-c8f1e5d046c1 Back to Theory--Living Constitutionalism and Eclectic Approachs Wed, 5 Feb 2025 05:00:00 +0000 seidman@georgetown.edu (Mark Tushnet, Louis Michael Seidman) https://supreme-betrayal-how-the-supreme-court-and-constitutional.simplecast.com/episodes/back-to-theory-living-constitutionalism-and-eclectic-approachs-XnFdQdJ8 Back to Theory--Living Constitutionalism and Eclectic Approachs Mark Tushnet, Louis Michael Seidman 00:55:18 This episode discusses living constitutionalism and what we call eclectic approaches to constitutional interpretation such as Phillip Bobbitt’s “modalities” approach. We argue that such approaches have some virtues—including greater descriptive accuracy than originalism and democracy-focused approaches—but significant weaknesses. We also begin to introduce Tushnet’s “craft” account of constitutional interpretation, to be developed in more detail in later episodes. This episode discusses living constitutionalism and what we call eclectic approaches to constitutional interpretation such as Phillip Bobbitt’s “modalities” approach. We argue that such approaches have some virtues—including greater descriptive accuracy than originalism and democracy-focused approaches—but significant weaknesses. We also begin to introduce Tushnet’s “craft” account of constitutional interpretation, to be developed in more detail in later episodes. false full 12 b59291c3-954a-44cc-8925-2779ba2bb431 Current Events--The Trump Administration Arrives Sat, 25 Jan 2025 05:00:00 +0000 seidman@georgetown.edu (Mark Tushnet, Louis Michael Seidman) https://supreme-betrayal-how-the-supreme-court-and-constitutional.simplecast.com/episodes/current-events-the-trump-administration-arrives-MoZkbx93 Current Events--The Trump Administration Arrives Mark Tushnet, Louis Michael Seidman 00:53:03 This episode deals with "current events"--some of the constitutional issues swirling around the arrival of the second Trump Administration. We discuss the use of the presidential power to pardon by Biden and Trump (and disagree a bit about whether there are legal limits on that power), the implications of the collapse of the criminal cases against Trump, the TikTok case and the effort to eliminate birthright citizenship and their relationship to originalist constitutional theory. This episode deals with "current events"--some of the constitutional issues swirling around the arrival of the second Trump Administration. We discuss the use of the presidential power to pardon by Biden and Trump (and disagree a bit about whether there are legal limits on that power), the implications of the collapse of the criminal cases against Trump, the TikTok case and the effort to eliminate birthright citizenship and their relationship to originalist constitutional theory. false full 11 1738148a-252b-4241-ba44-118814734dd5 Democratic Theories Two Thu, 9 Jan 2025 05:00:00 +0000 seidman@georgetown.edu (Mark Tushnet, Louis Michael Seidman) https://supreme-betrayal-how-the-supreme-court-and-constitutional.simplecast.com/episodes/democratic-theories-two-bqg9Z6Ei Democratic Theories Two Mark Tushnet, Louis Michael Seidman 00:35:58 We continue our discussion of theories of judicial review that say it should enforce--and reinforce--democracy: footnote 4 theories and John Hart Ely. We argue that these theories run up against contradictions when they try to specify particular forms of democracy that they're trying to reinforce. As many have argued these theories can be quite narrow, leaving untouched forms of democratic failure that ought to be remedied, or quite broad, giving courts the power to displace ordinary legislation across extremely wide swathes of public policy. We also discuss Bruce Ackerman's effort to distinguish between constitutional politics, whose outcomes the courts should enforce, and ordinary politics, interest group politics whose outcomes judges should accept. And we renew our disagreement about whether or how we should respect decisions made years ago by people quite different from us. We continue our discussion of theories of judicial review that say it should enforce--and reinforce--democracy: footnote 4 theories and John Hart Ely. We argue that these theories run up against contradictions when they try to specify particular forms of democracy that they're trying to reinforce. As many have argued these theories can be quite narrow, leaving untouched forms of democratic failure that ought to be remedied, or quite broad, giving courts the power to displace ordinary legislation across extremely wide swathes of public policy. We also discuss Bruce Ackerman's effort to distinguish between constitutional politics, whose outcomes the courts should enforce, and ordinary politics, interest group politics whose outcomes judges should accept. And we renew our disagreement about whether or how we should respect decisions made years ago by people quite different from us. false full 10 f9036038-63d5-49b7-b028-be63b4dc672e Democratic Theories One Thu, 26 Dec 2024 05:00:00 +0000 seidman@georgetown.edu (Mark Tushnet, Louis Michael Seidman) https://supreme-betrayal-how-the-supreme-court-and-constitutional.simplecast.com/episodes/democratic-theories-one-364y1HUg Democratic Theories One Mark Tushnet, Louis Michael Seidman 00:27:14 We now begin to explore alternatives to originalism as a theory of constitutional interpretation. This episode and the next deal with approaches that say that courts can promote democracy through constitutional review. This time we take up an old and mostly abandoned approach advocated by James Bardley Thayer in 1892, that courts should invalidate statutes only if they are obviously unreasonable. Thayer said that was the right approach because legislators should and did take their responsibility to adhere to the Constitution seriously. Most of discussion challenges that assumption. We now begin to explore alternatives to originalism as a theory of constitutional interpretation. This episode and the next deal with approaches that say that courts can promote democracy through constitutional review. This time we take up an old and mostly abandoned approach advocated by James Bardley Thayer in 1892, that courts should invalidate statutes only if they are obviously unreasonable. Thayer said that was the right approach because legislators should and did take their responsibility to adhere to the Constitution seriously. Most of discussion challenges that assumption. false full 9 2c6fb960-9ce2-413a-9f23-0ab85dfa465b Originalism Take Two Fri, 20 Dec 2024 05:00:00 +0000 seidman@georgetown.edu (Mark Tushnet, Louis Michael Seidman) https://supreme-betrayal-how-the-supreme-court-and-constitutional.simplecast.com/episodes/originalism-take-two-KfPlFLq_ Originalism Take Two Mark Tushnet, Louis Michael Seidman 00:51:24 We continue our discussion of originalism, developing two themes: defenses and criticisms of the original constitution articulated by prominent African American thinkers--Barbara Jordan, Thurgood Marshall, and Frederick Douglass--that bring out the distinction between the Constitution as enforceable law and as symbol of aspirations; and historians' critiques of originalism as developed most prominently recently by Jonathan Gienapp. The two of us disagree about some important details, but end up agreeing that at the very least originalism doesn't accurately describe the way even purported originalists among the justices actually seek to justify their decisions. We continue our discussion of originalism, developing two themes: defenses and criticisms of the original constitution articulated by prominent African American thinkers--Barbara Jordan, Thurgood Marshall, and Frederick Douglass--that bring out the distinction between the Constitution as enforceable law and as symbol of aspirations; and historians' critiques of originalism as developed most prominently recently by Jonathan Gienapp. The two of us disagree about some important details, but end up agreeing that at the very least originalism doesn't accurately describe the way even purported originalists among the justices actually seek to justify their decisions. false full 8 df8c163c-73e9-43e4-a356-054edfb7b09d Originalism Take One Mon, 9 Dec 2024 05:00:00 +0000 seidman@georgetown.edu (Mark Tushnet, Louis Michael Seidman) https://supreme-betrayal-how-the-supreme-court-and-constitutional.simplecast.com/episodes/originalism-take-one-RB4WB2Nj Originalism Take One Mark Tushnet, Louis Michael Seidman 00:44:46 This is the first of two episodes on the constitutional theory of originalism. This time we look at originalism from the inside; next time we offer broader criticisms. We spend a fair amount of time defining originalism's various versions and distinguish between academic originalism and originalism as practiced by the courts. In the end, we argue, academic originalism is difficult though not impossible to defend, but judicial originalism fails miserably at doing what its proponents claim orignalism does--keep judges from imposing their personal policy preferences in the guise of interpreting the Constitution. This is the first of two episodes on the constitutional theory of originalism. This time we look at originalism from the inside; next time we offer broader criticisms. We spend a fair amount of time defining originalism's various versions and distinguish between academic originalism and originalism as practiced by the courts. In the end, we argue, academic originalism is difficult though not impossible to defend, but judicial originalism fails miserably at doing what its proponents claim orignalism does--keep judges from imposing their personal policy preferences in the guise of interpreting the Constitution. false full 7 b1fa8067-4d59-4c24-8b40-d99e22dc3c48 Affirmative action, gun safety, gerrymandering--how the Supreme Court interferes witjh ordinary policy aking Tue, 26 Nov 2024 05:30:35 +0000 seidman@georgetown.edu (Mark Tushnet, Louis Michael Seidman) https://supreme-betrayal-how-the-supreme-court-and-constitutional.simplecast.com/episodes/affirmative-action-gun-safety-gerrymandering-how-the-supreme-court-interferes-witjh-ordinary-policy-aking-DHRNUw7V Affirmative action, gun safety, gerrymandering--how the Supreme Court interferes witjh ordinary policy aking Mark Tushnet, Louis Michael Seidman 00:40:31 Our lens broadens to deal with three issues of public policy where the Supreme Court has interfered with ordinary policy making: affirmative action, gun safety, and partisan gerrymandering. We discuss more briefly than in prior episodes the possible justifications for that interference and argue that those justifications aren't strong enough to overcome the presumption that ordinary policies should be determined by ordinary politics. Our lens broadens to deal with three issues of public policy where the Supreme Court has interfered with ordinary policy making: affirmative action, gun safety, and partisan gerrymandering. We discuss more briefly than in prior episodes the possible justifications for that interference and argue that those justifications aren't strong enough to overcome the presumption that ordinary policies should be determined by ordinary politics. false full 6 695f23b7-d3fc-48a7-ad9d-8ba917428eb5 Betraying America by Defending Donald Trump Mon, 18 Nov 2024 05:00:00 +0000 seidman@georgetown.edu (Mark Tushnet, Louis Michael Seidman) https://supreme-betrayal-how-the-supreme-court-and-constitutional.simplecast.com/episodes/betraying-america-by-defending-donald-trump-AMsrDzft Betraying America by Defending Donald Trump Mark Tushnet, Louis Michael Seidman 00:34:58 We discuss the Supreme Court's interference with the 2024 election by slow walking its consideration of Donald Trump's claim that he was immune from prosecution for his actions in connection with the January 6 insurrection. And we criticize the Court's ultimate decision for its incoherence, failure to provide guidance for the future, and inconsistency with basic ideas about our Constitution and the rule of law. We discuss the Supreme Court's interference with the 2024 election by slow walking its consideration of Donald Trump's claim that he was immune from prosecution for his actions in connection with the January 6 insurrection. And we criticize the Court's ultimate decision for its incoherence, failure to provide guidance for the future, and inconsistency with basic ideas about our Constitution and the rule of law. false full 5 c5ed5fe7-411e-4d43-a5fc-20711d8ccd6e Thinking About the Constitution After the 2024 Elections Fri, 8 Nov 2024 05:00:00 +0000 seidman@georgetown.edu (Mark Tushnet, Louis Michael Seidman) https://supreme-betrayal-how-the-supreme-court-and-constitutional.simplecast.com/episodes/thinking-about-the-constitution-after-the-2024-elections-5QZ62pxC Thinking About the Constitution After the 2024 Elections Mark Tushnet, Louis Michael Seidman 00:38:17 false full 4 8fda06e4-129c-4fdd-af84-133754bbabd1 The Dobbs Decision Mon, 4 Nov 2024 10:59:30 +0000 seidman@georgetown.edu (Mark Tushnet, Louis Michael Seidman) https://supreme-betrayal-how-the-supreme-court-and-constitutional.simplecast.com/episodes/the-dobbs-decision-144SFNRT The Dobbs Decision Mark Tushnet, Louis Michael Seidman 01:01:52 Progressives like us have vigorously criticized the Dobbs decision. Why? Doesn't it return a public policy question to the people for democratic decision-making? You'll hear our criticisms of the Dobbs decision, mostly for its internal logic, and our disagreements about the underlying issue--but our ultimate agreement that there's a fair amount to be said by people on our side of the political spectrum in favor of keeping the Court from constitutionalizing the abortion issue. Progressives like us have vigorously criticized the Dobbs decision. Why? Doesn't it return a public policy question to the people for democratic decision-making? You'll hear our criticisms of the Dobbs decision, mostly for its internal logic, and our disagreements about the underlying issue--but our ultimate agreement that there's a fair amount to be said by people on our side of the political spectrum in favor of keeping the Court from constitutionalizing the abortion issue. dobbs decision, pro-life, pro-choice false full 3 ea986979-f59d-4ea3-8ed7-d3f304cb4e61 How We Got Here -- Part II The episode deals with Trump's Supreme Court appointments and the effects of life tenureon the timing of appointments (and departures).

On Facebook:  Mark Tushnet

On X:  @Mark_Tushnet

]]> Sun, 27 Oct 2024 04:00:00 +0000 seidman@georgetown.edu (Mark Tushnet, Louis Michael Seidman) https://supreme-betrayal-how-the-supreme-court-and-constitutional.simplecast.com/episodes/how-we-got-here-part-ii-LwegK6SP The episode deals with Trump's Supreme Court appointments and the effects of life tenureon the timing of appointments (and departures).

On Facebook:  Mark Tushnet

On X:  @Mark_Tushnet

]]> How We Got Here -- Part II Mark Tushnet, Louis Michael Seidman 00:25:32 In the first episode, we talked about some of the large-scale structural forces that have produced a Supreme Court with views radically out of line with those of the American people. Today, we discuss some smaller, dramatic events that contributed to the crisis. Then, we turn to weaknesses in the original design of the Constitution that made it possible for those events to have occurred. In the first episode, we talked about some of the large-scale structural forces that have produced a Supreme Court with views radically out of line with those of the American people. Today, we discuss some smaller, dramatic events that contributed to the crisis. Then, we turn to weaknesses in the original design of the Constitution that made it possible for those events to have occurred. false full 2 5363badc-b1c0-4971-a668-5957bd7c38b6 How We Got Here -- Part I Fri, 11 Oct 2024 13:23:01 +0000 seidman@georgetown.edu (Mark Tushnet, Louis Michael Seidman) https://supreme-betrayal-how-the-supreme-court-and-constitutional.simplecast.com/episodes/how-we-got-here-part-i-oDwaGRhv How We Got Here -- Part I Mark Tushnet, Louis Michael Seidman 00:25:48 This episode explores the reasons why the modern Supreme Court is out of control and why the mechanisms that have historically kept it (more or less) in control no longer work This episode explores the reasons why the modern Supreme Court is out of control and why the mechanisms that have historically kept it (more or less) in control no longer work false full 1