Slaughter is a strange kind of partial coup—and one that, for no good reason, hands a lot of power over the next two and a half years to a highly corrupt chaos monkey. It is not the ruke of law.
The Slaughter decision really is obviously wrong, and it is not defensible.
The ICC was established on February 4, 1887. Ever since then, "independent" agencies have been a thing: the Congress has delegated a portion of its power to legislate to agencies that fall under the executive branch, under the condition that those agencies have a technocratic board nominated by the president and confirmed by the Senate, that is insulated from the president's momentary whims.
Now you can argue that this mixture of powers that Madison does not anticipate is bad institutional design. But 140 years of political negotiations about making relatively win-win deals between factions and interests have been carried out under the shadow of that doctrine.
Now all of those deals have been upset, and extraordinary amounts of additional power have been handed to someone who can only be truthfully described as a highly corrupt chaos monkey.
THAT IS NOT THE RULE OF LAW.
A Supreme Court that wanted to do an institutional reform job would have structured things very differently. It would have done something like what it did in Brown v. Board of Education. It would have announced what it had decided the law was going to be going forward. Acknowledged that that was a big change, and told everyone to bring their arrangements into conformity with the new state of the law "with all deliberate speed". It would have told Congress to get to work revising which powers that independent agencies currently exercise would be reclaimed by the Congress and which ones handed over to the new, unitary executive. It might have set a deadline.
**THAT IS NOT WHAT THIS HIGHLY, DEEPLY CORRUPT ROBERTS COURT DID. THAT IS NOT WHAT IT DID AT ALL. PRETENDING THAT THAT IS WHAT IT DID IS, I THINK, BENEATH YOU.**
Thanks much. Hope you and yours are well, or, rather, as well as one can be in a world in which while one may well be, personally, quite comfortable, we live in a world in which no man is an island.
> **Noel Maurer**: '“Weak” doesn’t mean “specious.” The [Slaughter] decision really is defensible and not obviously wrong. If you read anybody hyperventilating about a SCOTUS coup or calling them hypocrites, ignore them...
Greetings, Brad! It’s always good to hear from you. The kids are well, as is the extended family, even the ones in Miami. I would very much like to see you the next time I am in the Bay Area, or should you find yourself in either D.C. or NYC.
Which brings us to the substance.
I think we agree on the bottom line more than your note suggests: I would not have voted for Trump v. Slaughter or INS v. Chadha. Where I disagree is with calling Slaughter a “partial coup,” “not the rule of law,” or evidence of a “corrupt” Court. (I must admit that I do not understand what analytical work “partial coup” is doing here. If it means “a decision that overturns a long-settled constitutional practice,” then the term seems too broad.)
I hope I made that clear in my post. If I did not, then I failed to communicate! My position is simple: I think Madison was wrong in 1789 and is even more wrong in 2026, but I am hesitant to conclude that 149 years of different practice means that his argument deserves easy dismissal.
As I understand your argument, it has three parts:
(1) Stare decisis and rule of law: The decision violates 149 years of constitutional practice; 159 years if we count the Tenure of Office Act. Such a large violation of stare decisis is, in your words, “NOT THE RULE OF LAW.”
I know of no analysts who consider that complete devotion to stare decisis is essential to the rule of law; nor do I know of principled arguments that state that there is a time limit after which it must be respected. There is, however, a legal principle that allows judges to take into account the practical impact of their decisions.
What would change my mind is a principled account of why 149 years of practice makes overruling Humphrey’s Executor lawless, not merely disruptive or wrong.
(2) “With all deliberate speed”: Your out-of-the-box suggestion that SCOTUS could have set a time limit for Congress to adjust is a good one! It hadn’t occurred to me.
Nonetheless, I can think of two ripostes that I would like you to consider:
First, this decision has been telegraphed for years. For example, I have been warning the students who pay me to teach them that it has been coming since 2020. Given that Congress has done nothing about a very predictable decision, why would additional time make any difference? (Please note that this is an honest question; I am far from wedded to the idea that the answer to my question is “It wouldn’t.”)
Second, granting that Congress is shortsighted and tends not to anticipate future hypotheticals, no matter how probable, why is it SCOTUS’s responsibility to give Congress time to react when it seems clear that Congress (which will still have at least 40 GOP senators after January 2027) would not want to do anything with that information?
What would change my mind is a reason to believe Congress would actually use the time.
(3) Trump as beneficiary. I cannot disagree with you that the Trump administration demonstrates a regrettable level of incompetence and corruption. And there is an accepted doctrine that judges may take into account the practical impact of their decisions. That is, in fact, the heart of Brett Kavanaugh’s concurrence in Trump v. Cook.
The problem is that Trump v. Slaughter affects fewer agencies than many believe. The SEC, for example, lacks express for-cause removal protection, as do the FCC and the EEOC. It is certainly plausible to argue that those commissioners should have had such protection, but the fact of the matter is that they did not. (Free Enterprise Fund v. PCAOB (2010) assumed that SEC commissioners had removal protection, but there is nonetheless no explicit statutory basis for that assumption and the decision did not directly address it. The actual decision struck down the second layer of protection for PCAOB members.)
I agree that settled expectations matter, but I do not yet see how the disruption is large enough to convert a mistaken constitutional decision into a coup or a corrupt act. What would change my mind is a concrete account of why the practical damage is large enough that Justices should preserve a precedent they believe misreads Article II.
I hope you respond, because this is exactly the sort of disagreement where I think we can add value and possibly change opinions. We agree that the decision is bad, but we disagree about whether “incorrect” and “disruptive” add up to “lawless” or “corrupt.”
&, BTW, what was ever wrong with Roe v. Wade? It was a "privacy" and a "doctor-patient" opinion:
* it is self-evident that humans have inalienable rights
* among those is the right to privacy and control of one's intimate bodily affairs
* For the first 12 weeks of a pregnancy, the decision whether to continue a pregnancy is overwhelmingly a biomedical decision
* That is rightly a matter for women and their doctors **alone**
* For the middle 14 weeks of a pregnancy, the state has an interest that abortions be safe, and can regulate to make that so.
* In the last 14 weeks of a pregnancy, the baby-to-be has rights that states can rightly decide to vindicate—but those rights are secondary to medical decisions with respect to maternal life and health.
That is not crazy. And it is not incoherent. It is what judges ought to do: draw clear bright lines to vindicate liberty under law.
> **Noel Maurer**: 'The majority opinion, however, just waved its hands really fast. They don’t grapple with any of the issues Thomas raises. Instead, the majority waves its hands in a word salad that reminds me far too much of _Roe v. Wade_...
====
**DELONG’S GRASPING REALITY: Trying to make my readers—and myself—smarter. I think I am a go-to source to understand things economic in the past and in the present. Too online since 1995. Subscribe <https://graspingreality.substack.com/subscribe>**
Brad, I should be clear about something here. I am not neutral on abortion. I regard it as the taking of innocent human life. I am Jewish, as you know, so I do not claim that abortion admits of no tragic exceptions; I am quite open to situational arguments. In that vein, I have also reluctantly conceded that permitting some abortions may reduce human suffering compared to the available counterfactuals, although I remain humbly uncertain about that conclusion.
I do not object to your implicit view that my moral premises should not by themselves dictate public policy. In fact, I think I would agree with you about that.
What I do object to is the way you write as if there is no serious moral premise on the other side and the only permissible question is how to “vindicate liberty under law.” I understand that you disagree with my moral premise. That is perfectly fine. The problem, however, is that your formulation reads as though no serious person could hold it.
That said, I was not trying to reopen the abortion debate. I was using Roe as shorthand for an opinion that reached a result many people thought sensible while failing to do the necessary constitutional work. Even if one believes there is a constitutional right to abortion, Roe was poorly reasoned: it treated abortion as part of a broader right of privacy without locating that right cleanly in the Constitution.
The opinion said the right of privacy might possibly rest in the Fourteenth Amendment’s concept of liberty or perhaps in the Ninth Amendment’s reservation of rights. It then made a further logical leap to argue that those principles were broad enough to include abortion.
My point about Trump v. Cook is the same. Unlike Roe, I unreservedly like the outcome; preserving Federal Reserve independence is a good practical result. But the reasoning is terrible if the Court is otherwise committed to the unitary executive.
I can imagine three better opinions. My preferred one, on logical and constitutional grounds, would have jettisoned the unitary executive principle and preserved the Fed as part of a broader reaffirmation of Humphrey’s Executor, stare decisis, and 149 years of constitutional practice. A second decision that I would respect on logical grounds, even if I disagreed with it, would have delayed the effect of its ruling and invited Congress to separate the Fed’s regulatory authority from its other functions. A third one would have simply invalidated Fed independence but suggest that Congress could creatively recreate it by combining the precedents of the Bank of North America and Obamacare: force all bank-like institutions to agree to submit to central bank oversight or face adverse consequences.
Instead, the Court carved out the Fed while refusing to explain how that carveout fits with its own theory. I believe that the SCOTUS majority did that because it does not believe that Congress would respond constructively to something like my latter two options. Instead, the Court waved its hands to produce its desired policy outcome, much as an earlier Court did with Roe.
I am sympathetic to the aim in one and unsympathetic to the aim in the other, but that does not change my view of the reasoning behind either.
Roe v Wade was absolutely constitutional. It is rooted in the deeo history of the unenumerated right of privacy of family life from prior cases. Coupled with "life, liberty and property" where American courts have always interpreted the life of a dependent to be below the abolute liberty of someone they are dependent on. If that wasn't the case, America would constitutionally mandate free healthcare to preserve all life dependent on the public's taxation.
I would respectfully disagree. Allow me to take your two points in turn.
The "penumbras" and "emanations" upon which Roe was based came from Griswold, which had been decided only eight years previously. It was not as though there was a long line of jurisprudence between the two.
I do not follow the logic or factual basis of your last line. As far as I know, the law doesn't put the lives of my dependent children below my own. Similarly, for better or for worse the standards and penalties for criminal neglect are different than the standards for manslaughter, which in turn are different from murder. It seems like you're trying to argue that a failing to provide adequate health care to your dependent children is the equivalent of neglecting them, but that's not true in fact or in theory.
I may be entirely misunderstanding what you're trying to tell me!
You know as well as I do, what Amendment IX says: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." The authors of the Bill of Rights did everything they could to keep people from making the argument that one could only assert a right after "locating that right cleanly in the Constitution". Indeed, a big argument at the time against the Bill of Rights was that people like you would make the argument you do, the argument that Amendment IX was expressly written to preclude. What more should Powell have done, other than to point to IX and XIV?
So you will understand that I am not persuaded or impressed? That I still think the answer to "what's wrong with the reasoning in Roe v. Wade?" is "nothing: some people do not like the outcome that women have a right to undertake first and second trimester abortions". There is nothing wrong with the reasoning, once you start from the premises that (a) this is a free country in which people have rights rather than privileges granted by black-letter government documents, and (b) abortion is a medical procedure.
++++++
I find it helpful to view the question of pre-quickening abortions through the lens of the numbers. Roughly, here in the United States, each year:
* 3.6 million babies are born, 3.5 million from natural- and 100,000 from IVF-fertilization.
* 1.2 million abortions.
* 1.2 million miscarriages after implantation.
* 5 million simple failures to implant in the uterine wall.
* 2 million of fertilized ova excess in or unsuccessful IVF processes.
* 13 million fertilized ova.
* 670 million ovulations.
* 20 billion male orgasms.
Now I do know that there are people who have thought long and hard sincerely believe that 3/4 of those male orgasms are gravely disordered sins that severe, temporarily at least, your relationship with God. And I do know that there are people who have thought long and hard and believe that a woman who births an IVF-fertilized baby is a murderess twenty times over, and ought, in the words of Kevin Williamson, to be hanged. They are, at least, consistent, in a way that I feel that most who strongly condemn pre-quickening abortions are not.
Yes but Griswold follows on from decisions in the 1920s about the privacy of family and rights for raising children. It goes deeper than the propaganda Clarence Thomas puts out.
You're liberty isn't compromised by your children, you can give them up for adoption, and before adoption systems, the child was free to be abandoned into indentures labor.
US courts have consistently upheld the fact that no one is inherently obliged to physically support the life of another. That's why both a fetus BEFORE independent viability and say, someone dying if cancer with no money, do not have a right to life. Neither of them are viable on their own without a willing donor. It's because else would have to give free money, time and resources comrpomising on their constitutional liberty.
Striking down Roe V Wade would require a fundamental reset of how the US views obligations to life compared to liberty. The US has a lower life expectancy than other countries exactly for this deep rooted tradition that someone's liberty cannot be constrained at the expense of supporting life.
I don’t understand the point about indentured labor, and I am calling you out for attempting to imply that I have been bamboozled by Clarence Thomas. I still don’t understand your point about Griswold, so I would appreciate it if you could cite which precedents and portions of the decision that you are thinking about.
Your statement that U.S. courts have found that no one is responsible for anyone else is simply wrong. Criminal neglect is a thing, particularly with children, but not only with them. The claim is factually incorrect.
And, well, Roe v. Wade was struck down without fundamentally resetting anything other than abortion law in select states. Nor did anything other than abortion law change from the decision back in 1973. That claim also appears to be factually incorrect, unless perhaps you are hypothesizing about the future or know of some change in 1973 that I have missed.
In short, I am most unconvinced by your arguments so far, although new facts or overlooked points of logic could change my opinion.
Where in the constitution is criminal neglect a protected right? It isn't, child abuse is protected through statutory legislation. But child neglect is different to abandoning a child. Abandoning a child via legal methods has always been possible and is in fact constitutional as the constitution does not infringe on any one person's liberty to simply guarantee the safety of another's life.
The point about indentured labor is that prior to the legislation of adoption agencies, in the US, parents were free to abandon children who would likely have to submit themselves to indentured labor. In other words, the freedom of the parent has always trumped constitutionally. Legally speaking, there is no reason that shouldn't apply to abortion either.
Regarding the griswold decisions, you can look at Meyer v. Nebraska (1923) and Pierce v. Society of Sisters (1925) as privacy cases that provided precedent for it. But as I mentioned, the supreme court as it operates today is a 9 person monarchy so stare decisis only matters to the extent that Clarence Thomas et al want it to. Yes there are apolitical 9-0 decisions, non controversial cases which are taken up simply to provide the illusion that the supreme court is apolitical. They aren't really what the court cares about though.
Logically, you are not making sense. Giving up a child for adoption is not abandonment. And, uh, you agree that criminal neglect exists. You are not making sense.
Abandonment has been a crime for a very long time. As for children and indentured labor, well, that has also been a crime since 1865. Once again, I can't parse what you are tryin gto argue.
Neither case established a right to privacy. Meyer said that parents can teach their children in languages other than English on equal treatment grounds and stated, "The child is not the mere creature of the state." Griswold relied on the 14th Amendment only to make it applicable to state governments. When you read the decision, it only cites Meyer as a precedent for "peripheral rights," an badly-phrased idea whose substance has never been disputed.
Pierce stated that religious schools can't be banned. It did, however, reaffirm the state's right to regulate them, all the way down to insuring that teachers have a "patriotic disposition." Not exactly Griswold there, sir.
Why you think Clarence Thomas is a dictator is a bit beyond me.
As our monarchs including clarence thomas love to point out (when convenient for them) an originalist doctrine means we need to interpret the constitution at the time of creation. There is no constitutional amendment or intention that the life of children trumps a parent's liberty, even after the removal of indentured labor.
Well that assumes that you think the right to teaching children a language is a matter of privacy or not (I do, at least in so far as abortion would also be, but as mentioned I think the argument from liberty is far stronger).
Ultimately though, it's only a matter for the supreme monarchs to decide, and it just rests on their subjective opinion. Our opinion is irrelevant, seeing as there is no way to for the US population to depose their monarchs. The monarchs did a great job of ensuring people will never be able to get their electors to impeach them, by issuing edicts striking down all laws related to voting rights and campaign finance, and thus removing any incentive for electors to depose them, since money rather than voters now rule politics.
Here's a clear and falsisifiable statement: Thanks to the supreme monarchs dismantling all laws on voting rights and campaign finance, and elections now being based on money rather than public opinion, there is never enough votes in congress to pass legislation that the public supports by a vast majority such as anti gerrymandering legislation, labor rights legislation, medicare for all, increasing the federal minimum wage, and of course regulating our supreme monarchs. Instead bills like the OBBB which the majority of the public oppose are passed.
If public opinion mattered to elections, all issues which the public strongly supported, rather than which the monarchs and campaign donors supported, would be passed in congress
Anyine can come ip with a "constitutional" opinion about anything. All that matters is the change in the partisanship of the judges. Until the incentives of the supreme court are fundamentally altered, this type of analysis is pointless.
Hmm. I’ve thought about this. I partially agree. For example, I was embarrassed that the decision on birthright citizenship wasn’t 9-0. Textualism about the citizenship clause of Fourteenth Amendment is easy — it’s not like “jurisdiction” has multiple meanings. And if you want to honestly use originalism rather than textualism, then it requires good history! And good history is not easy. Instead of good history, we had some justices looking around for obscure dissents that supported their decision and then dropping the mike. The dissenters in that case seem to me to mostly exemplify your statement.
But. I don’t think the evidence supports your statement as a general proposition. Amy Coney Barrett, Brett Kavanaugh, Neil Gorsuch, Elena Kagan, and (of course) John Roberts have all authored or voted for decisions that you would not expect given their political backgrounds. And the recent birthright case didn't break down on party lines.
The point of my post was that the Slaughter decision wasn’t political — it doesn’t clearly favor conservative or liberal or socialist policy preferences. Nor was it specious, even if I think it was incorrect. (I honestly do not believe that everyone who disagrees with me is an idiot.) That doesn’t mean that there haven’t been specious court decisions — the minority in the current birthright case, the majority in Roe v. Wade are examples.
But it does imply that a theory of the Court which reads “All that matters is the partisanship of the judges” is likely to make bad predictions.
I do hope that this reads to you as respectfully as I intended it to be. If not, please accept my apologies.
Just because the 9 judges are individual people who vote slightly differently because some of them want to keep a small semblance of consistency doesn't mean they aren't free to do exactly what they want. They absolutely are, and they ultimately are only beholden to themselves. They twist the vagueness of laws to mean whatever they want them to say. That's why they can vote to destroy birthright citizenship, the FTC, or anything else they choose. They argue from "history" sometimes, and from "plain text" other times. It's just smoke and mirrors.
At this point, the supreme court are effectively 9 monarchs, accountable to no one but deciding the law for everyone. We the people sit here trying to rationalize them deciding whatever they want. Ironically, this takes the US so far from its initial aim to be free from monarchy and be a country for the people. Arguably the supreme court judges are more protected than the british monarchs, who at least had to fear being deposed in favour of a new family. Now congress are merely their humble subjects, thanks to clever edicts issued by the court. Until the supreme court is packed to the point of being unviable or jurisdictionally stripped, there isn't any difference between their edicts and those of a monarch. You can try to rationalize the monarch as being a benevolent monarch if you so wish, I don't think it matters because they are so inconsistent that they obviously aren't. As you say, there are no 9-0 decisions on anything remotely political.
There are 9-0 decisions on many political topics. I did say they were rarer on politically salient topics.
I might agree with you in part about SCOTUS's oversized power. But your rhetoric is rather overheated, which makes me uncertain about what exactly you are arguing. Your point about the justices being politicized still appears to be quite clearly wrong for at least four of the "conservative" judges and one of the "liberal" ones, and to be honest I strongly suspect it is also true of Sotomayor and Jackson.
If it is overheated to call an unelected body accountable to no one and free to decide the law on any issue from abortion to birthright citizenship on their own edicts and whims then so be it. If you think they just happen to not be corrupt out of the goodness of their hearts and point to an occasionally unpredictable edict then I would call that wishful thinking.
Yes, your rhetoric is completely overheated. You seem to confuse your whims with whimsical actions. I am afraid that you are not particularly convincing.
Noel—
Slaughter is a strange kind of partial coup—and one that, for no good reason, hands a lot of power over the next two and a half years to a highly corrupt chaos monkey. It is not the ruke of law.
The Slaughter decision really is obviously wrong, and it is not defensible.
The ICC was established on February 4, 1887. Ever since then, "independent" agencies have been a thing: the Congress has delegated a portion of its power to legislate to agencies that fall under the executive branch, under the condition that those agencies have a technocratic board nominated by the president and confirmed by the Senate, that is insulated from the president's momentary whims.
Now you can argue that this mixture of powers that Madison does not anticipate is bad institutional design. But 140 years of political negotiations about making relatively win-win deals between factions and interests have been carried out under the shadow of that doctrine.
Now all of those deals have been upset, and extraordinary amounts of additional power have been handed to someone who can only be truthfully described as a highly corrupt chaos monkey.
THAT IS NOT THE RULE OF LAW.
A Supreme Court that wanted to do an institutional reform job would have structured things very differently. It would have done something like what it did in Brown v. Board of Education. It would have announced what it had decided the law was going to be going forward. Acknowledged that that was a big change, and told everyone to bring their arrangements into conformity with the new state of the law "with all deliberate speed". It would have told Congress to get to work revising which powers that independent agencies currently exercise would be reclaimed by the Congress and which ones handed over to the new, unitary executive. It might have set a deadline.
**THAT IS NOT WHAT THIS HIGHLY, DEEPLY CORRUPT ROBERTS COURT DID. THAT IS NOT WHAT IT DID AT ALL. PRETENDING THAT THAT IS WHAT IT DID IS, I THINK, BENEATH YOU.**
Thanks much. Hope you and yours are well, or, rather, as well as one can be in a world in which while one may well be, personally, quite comfortable, we live in a world in which no man is an island.
Yours, J. Bradford DeLong
Professor of Economics, Emeritus, UC Berkeley
brad.delong@gmail.com <https://braddelong.substack.com/about>
> **Noel Maurer**: '“Weak” doesn’t mean “specious.” The [Slaughter] decision really is defensible and not obviously wrong. If you read anybody hyperventilating about a SCOTUS coup or calling them hypocrites, ignore them...
<https://www.noelmaurer.com/p/unitary-except-at-the-fed> <https://braddelong.substack.com/p/i-am-glad-lisa-cook-rightly-gets>
Greetings, Brad! It’s always good to hear from you. The kids are well, as is the extended family, even the ones in Miami. I would very much like to see you the next time I am in the Bay Area, or should you find yourself in either D.C. or NYC.
Which brings us to the substance.
I think we agree on the bottom line more than your note suggests: I would not have voted for Trump v. Slaughter or INS v. Chadha. Where I disagree is with calling Slaughter a “partial coup,” “not the rule of law,” or evidence of a “corrupt” Court. (I must admit that I do not understand what analytical work “partial coup” is doing here. If it means “a decision that overturns a long-settled constitutional practice,” then the term seems too broad.)
I hope I made that clear in my post. If I did not, then I failed to communicate! My position is simple: I think Madison was wrong in 1789 and is even more wrong in 2026, but I am hesitant to conclude that 149 years of different practice means that his argument deserves easy dismissal.
As I understand your argument, it has three parts:
(1) Stare decisis and rule of law: The decision violates 149 years of constitutional practice; 159 years if we count the Tenure of Office Act. Such a large violation of stare decisis is, in your words, “NOT THE RULE OF LAW.”
I know of no analysts who consider that complete devotion to stare decisis is essential to the rule of law; nor do I know of principled arguments that state that there is a time limit after which it must be respected. There is, however, a legal principle that allows judges to take into account the practical impact of their decisions.
What would change my mind is a principled account of why 149 years of practice makes overruling Humphrey’s Executor lawless, not merely disruptive or wrong.
(2) “With all deliberate speed”: Your out-of-the-box suggestion that SCOTUS could have set a time limit for Congress to adjust is a good one! It hadn’t occurred to me.
Nonetheless, I can think of two ripostes that I would like you to consider:
First, this decision has been telegraphed for years. For example, I have been warning the students who pay me to teach them that it has been coming since 2020. Given that Congress has done nothing about a very predictable decision, why would additional time make any difference? (Please note that this is an honest question; I am far from wedded to the idea that the answer to my question is “It wouldn’t.”)
Second, granting that Congress is shortsighted and tends not to anticipate future hypotheticals, no matter how probable, why is it SCOTUS’s responsibility to give Congress time to react when it seems clear that Congress (which will still have at least 40 GOP senators after January 2027) would not want to do anything with that information?
What would change my mind is a reason to believe Congress would actually use the time.
(3) Trump as beneficiary. I cannot disagree with you that the Trump administration demonstrates a regrettable level of incompetence and corruption. And there is an accepted doctrine that judges may take into account the practical impact of their decisions. That is, in fact, the heart of Brett Kavanaugh’s concurrence in Trump v. Cook.
The problem is that Trump v. Slaughter affects fewer agencies than many believe. The SEC, for example, lacks express for-cause removal protection, as do the FCC and the EEOC. It is certainly plausible to argue that those commissioners should have had such protection, but the fact of the matter is that they did not. (Free Enterprise Fund v. PCAOB (2010) assumed that SEC commissioners had removal protection, but there is nonetheless no explicit statutory basis for that assumption and the decision did not directly address it. The actual decision struck down the second layer of protection for PCAOB members.)
I agree that settled expectations matter, but I do not yet see how the disruption is large enough to convert a mistaken constitutional decision into a coup or a corrupt act. What would change my mind is a concrete account of why the practical damage is large enough that Justices should preserve a precedent they believe misreads Article II.
I hope you respond, because this is exactly the sort of disagreement where I think we can add value and possibly change opinions. We agree that the decision is bad, but we disagree about whether “incorrect” and “disruptive” add up to “lawless” or “corrupt.”
&, BTW, what was ever wrong with Roe v. Wade? It was a "privacy" and a "doctor-patient" opinion:
* it is self-evident that humans have inalienable rights
* among those is the right to privacy and control of one's intimate bodily affairs
* For the first 12 weeks of a pregnancy, the decision whether to continue a pregnancy is overwhelmingly a biomedical decision
* That is rightly a matter for women and their doctors **alone**
* For the middle 14 weeks of a pregnancy, the state has an interest that abortions be safe, and can regulate to make that so.
* In the last 14 weeks of a pregnancy, the baby-to-be has rights that states can rightly decide to vindicate—but those rights are secondary to medical decisions with respect to maternal life and health.
That is not crazy. And it is not incoherent. It is what judges ought to do: draw clear bright lines to vindicate liberty under law.
> **Noel Maurer**: 'The majority opinion, however, just waved its hands really fast. They don’t grapple with any of the issues Thomas raises. Instead, the majority waves its hands in a word salad that reminds me far too much of _Roe v. Wade_...
====
**DELONG’S GRASPING REALITY: Trying to make my readers—and myself—smarter. I think I am a go-to source to understand things economic in the past and in the present. Too online since 1995. Subscribe <https://graspingreality.substack.com/subscribe>**
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<https://www.noelmaurer.com/p/unitary-except-at-the-fed>
Brad, I should be clear about something here. I am not neutral on abortion. I regard it as the taking of innocent human life. I am Jewish, as you know, so I do not claim that abortion admits of no tragic exceptions; I am quite open to situational arguments. In that vein, I have also reluctantly conceded that permitting some abortions may reduce human suffering compared to the available counterfactuals, although I remain humbly uncertain about that conclusion.
I do not object to your implicit view that my moral premises should not by themselves dictate public policy. In fact, I think I would agree with you about that.
What I do object to is the way you write as if there is no serious moral premise on the other side and the only permissible question is how to “vindicate liberty under law.” I understand that you disagree with my moral premise. That is perfectly fine. The problem, however, is that your formulation reads as though no serious person could hold it.
That said, I was not trying to reopen the abortion debate. I was using Roe as shorthand for an opinion that reached a result many people thought sensible while failing to do the necessary constitutional work. Even if one believes there is a constitutional right to abortion, Roe was poorly reasoned: it treated abortion as part of a broader right of privacy without locating that right cleanly in the Constitution.
The opinion said the right of privacy might possibly rest in the Fourteenth Amendment’s concept of liberty or perhaps in the Ninth Amendment’s reservation of rights. It then made a further logical leap to argue that those principles were broad enough to include abortion.
My point about Trump v. Cook is the same. Unlike Roe, I unreservedly like the outcome; preserving Federal Reserve independence is a good practical result. But the reasoning is terrible if the Court is otherwise committed to the unitary executive.
I can imagine three better opinions. My preferred one, on logical and constitutional grounds, would have jettisoned the unitary executive principle and preserved the Fed as part of a broader reaffirmation of Humphrey’s Executor, stare decisis, and 149 years of constitutional practice. A second decision that I would respect on logical grounds, even if I disagreed with it, would have delayed the effect of its ruling and invited Congress to separate the Fed’s regulatory authority from its other functions. A third one would have simply invalidated Fed independence but suggest that Congress could creatively recreate it by combining the precedents of the Bank of North America and Obamacare: force all bank-like institutions to agree to submit to central bank oversight or face adverse consequences.
Instead, the Court carved out the Fed while refusing to explain how that carveout fits with its own theory. I believe that the SCOTUS majority did that because it does not believe that Congress would respond constructively to something like my latter two options. Instead, the Court waved its hands to produce its desired policy outcome, much as an earlier Court did with Roe.
I am sympathetic to the aim in one and unsympathetic to the aim in the other, but that does not change my view of the reasoning behind either.
Roe v Wade was absolutely constitutional. It is rooted in the deeo history of the unenumerated right of privacy of family life from prior cases. Coupled with "life, liberty and property" where American courts have always interpreted the life of a dependent to be below the abolute liberty of someone they are dependent on. If that wasn't the case, America would constitutionally mandate free healthcare to preserve all life dependent on the public's taxation.
I would respectfully disagree. Allow me to take your two points in turn.
The "penumbras" and "emanations" upon which Roe was based came from Griswold, which had been decided only eight years previously. It was not as though there was a long line of jurisprudence between the two.
I do not follow the logic or factual basis of your last line. As far as I know, the law doesn't put the lives of my dependent children below my own. Similarly, for better or for worse the standards and penalties for criminal neglect are different than the standards for manslaughter, which in turn are different from murder. It seems like you're trying to argue that a failing to provide adequate health care to your dependent children is the equivalent of neglecting them, but that's not true in fact or in theory.
I may be entirely misunderstanding what you're trying to tell me!
Noel—
You know as well as I do, what Amendment IX says: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." The authors of the Bill of Rights did everything they could to keep people from making the argument that one could only assert a right after "locating that right cleanly in the Constitution". Indeed, a big argument at the time against the Bill of Rights was that people like you would make the argument you do, the argument that Amendment IX was expressly written to preclude. What more should Powell have done, other than to point to IX and XIV?
So you will understand that I am not persuaded or impressed? That I still think the answer to "what's wrong with the reasoning in Roe v. Wade?" is "nothing: some people do not like the outcome that women have a right to undertake first and second trimester abortions". There is nothing wrong with the reasoning, once you start from the premises that (a) this is a free country in which people have rights rather than privileges granted by black-letter government documents, and (b) abortion is a medical procedure.
++++++
I find it helpful to view the question of pre-quickening abortions through the lens of the numbers. Roughly, here in the United States, each year:
* 3.6 million babies are born, 3.5 million from natural- and 100,000 from IVF-fertilization.
* 1.2 million abortions.
* 1.2 million miscarriages after implantation.
* 5 million simple failures to implant in the uterine wall.
* 2 million of fertilized ova excess in or unsuccessful IVF processes.
* 13 million fertilized ova.
* 670 million ovulations.
* 20 billion male orgasms.
Now I do know that there are people who have thought long and hard sincerely believe that 3/4 of those male orgasms are gravely disordered sins that severe, temporarily at least, your relationship with God. And I do know that there are people who have thought long and hard and believe that a woman who births an IVF-fertilized baby is a murderess twenty times over, and ought, in the words of Kevin Williamson, to be hanged. They are, at least, consistent, in a way that I feel that most who strongly condemn pre-quickening abortions are not.
Yes but Griswold follows on from decisions in the 1920s about the privacy of family and rights for raising children. It goes deeper than the propaganda Clarence Thomas puts out.
You're liberty isn't compromised by your children, you can give them up for adoption, and before adoption systems, the child was free to be abandoned into indentures labor.
US courts have consistently upheld the fact that no one is inherently obliged to physically support the life of another. That's why both a fetus BEFORE independent viability and say, someone dying if cancer with no money, do not have a right to life. Neither of them are viable on their own without a willing donor. It's because else would have to give free money, time and resources comrpomising on their constitutional liberty.
Striking down Roe V Wade would require a fundamental reset of how the US views obligations to life compared to liberty. The US has a lower life expectancy than other countries exactly for this deep rooted tradition that someone's liberty cannot be constrained at the expense of supporting life.
I don’t understand the point about indentured labor, and I am calling you out for attempting to imply that I have been bamboozled by Clarence Thomas. I still don’t understand your point about Griswold, so I would appreciate it if you could cite which precedents and portions of the decision that you are thinking about.
Your statement that U.S. courts have found that no one is responsible for anyone else is simply wrong. Criminal neglect is a thing, particularly with children, but not only with them. The claim is factually incorrect.
And, well, Roe v. Wade was struck down without fundamentally resetting anything other than abortion law in select states. Nor did anything other than abortion law change from the decision back in 1973. That claim also appears to be factually incorrect, unless perhaps you are hypothesizing about the future or know of some change in 1973 that I have missed.
In short, I am most unconvinced by your arguments so far, although new facts or overlooked points of logic could change my opinion.
Where in the constitution is criminal neglect a protected right? It isn't, child abuse is protected through statutory legislation. But child neglect is different to abandoning a child. Abandoning a child via legal methods has always been possible and is in fact constitutional as the constitution does not infringe on any one person's liberty to simply guarantee the safety of another's life.
The point about indentured labor is that prior to the legislation of adoption agencies, in the US, parents were free to abandon children who would likely have to submit themselves to indentured labor. In other words, the freedom of the parent has always trumped constitutionally. Legally speaking, there is no reason that shouldn't apply to abortion either.
Regarding the griswold decisions, you can look at Meyer v. Nebraska (1923) and Pierce v. Society of Sisters (1925) as privacy cases that provided precedent for it. But as I mentioned, the supreme court as it operates today is a 9 person monarchy so stare decisis only matters to the extent that Clarence Thomas et al want it to. Yes there are apolitical 9-0 decisions, non controversial cases which are taken up simply to provide the illusion that the supreme court is apolitical. They aren't really what the court cares about though.
Logically, you are not making sense. Giving up a child for adoption is not abandonment. And, uh, you agree that criminal neglect exists. You are not making sense.
Abandonment has been a crime for a very long time. As for children and indentured labor, well, that has also been a crime since 1865. Once again, I can't parse what you are tryin gto argue.
Neither case established a right to privacy. Meyer said that parents can teach their children in languages other than English on equal treatment grounds and stated, "The child is not the mere creature of the state." Griswold relied on the 14th Amendment only to make it applicable to state governments. When you read the decision, it only cites Meyer as a precedent for "peripheral rights," an badly-phrased idea whose substance has never been disputed.
Pierce stated that religious schools can't be banned. It did, however, reaffirm the state's right to regulate them, all the way down to insuring that teachers have a "patriotic disposition." Not exactly Griswold there, sir.
Why you think Clarence Thomas is a dictator is a bit beyond me.
As our monarchs including clarence thomas love to point out (when convenient for them) an originalist doctrine means we need to interpret the constitution at the time of creation. There is no constitutional amendment or intention that the life of children trumps a parent's liberty, even after the removal of indentured labor.
Well that assumes that you think the right to teaching children a language is a matter of privacy or not (I do, at least in so far as abortion would also be, but as mentioned I think the argument from liberty is far stronger).
Ultimately though, it's only a matter for the supreme monarchs to decide, and it just rests on their subjective opinion. Our opinion is irrelevant, seeing as there is no way to for the US population to depose their monarchs. The monarchs did a great job of ensuring people will never be able to get their electors to impeach them, by issuing edicts striking down all laws related to voting rights and campaign finance, and thus removing any incentive for electors to depose them, since money rather than voters now rule politics.
You are not speaking about empirical reality if you think that public opinion doesn't swing elections.
I am willing to engage if you would stick to clear falsifiable statements rather than sweeping ideological claims.
Here's a clear and falsisifiable statement: Thanks to the supreme monarchs dismantling all laws on voting rights and campaign finance, and elections now being based on money rather than public opinion, there is never enough votes in congress to pass legislation that the public supports by a vast majority such as anti gerrymandering legislation, labor rights legislation, medicare for all, increasing the federal minimum wage, and of course regulating our supreme monarchs. Instead bills like the OBBB which the majority of the public oppose are passed.
If public opinion mattered to elections, all issues which the public strongly supported, rather than which the monarchs and campaign donors supported, would be passed in congress
Anyine can come ip with a "constitutional" opinion about anything. All that matters is the change in the partisanship of the judges. Until the incentives of the supreme court are fundamentally altered, this type of analysis is pointless.
Hmm. I’ve thought about this. I partially agree. For example, I was embarrassed that the decision on birthright citizenship wasn’t 9-0. Textualism about the citizenship clause of Fourteenth Amendment is easy — it’s not like “jurisdiction” has multiple meanings. And if you want to honestly use originalism rather than textualism, then it requires good history! And good history is not easy. Instead of good history, we had some justices looking around for obscure dissents that supported their decision and then dropping the mike. The dissenters in that case seem to me to mostly exemplify your statement.
But. I don’t think the evidence supports your statement as a general proposition. Amy Coney Barrett, Brett Kavanaugh, Neil Gorsuch, Elena Kagan, and (of course) John Roberts have all authored or voted for decisions that you would not expect given their political backgrounds. And the recent birthright case didn't break down on party lines.
The point of my post was that the Slaughter decision wasn’t political — it doesn’t clearly favor conservative or liberal or socialist policy preferences. Nor was it specious, even if I think it was incorrect. (I honestly do not believe that everyone who disagrees with me is an idiot.) That doesn’t mean that there haven’t been specious court decisions — the minority in the current birthright case, the majority in Roe v. Wade are examples.
But it does imply that a theory of the Court which reads “All that matters is the partisanship of the judges” is likely to make bad predictions.
I do hope that this reads to you as respectfully as I intended it to be. If not, please accept my apologies.
Just because the 9 judges are individual people who vote slightly differently because some of them want to keep a small semblance of consistency doesn't mean they aren't free to do exactly what they want. They absolutely are, and they ultimately are only beholden to themselves. They twist the vagueness of laws to mean whatever they want them to say. That's why they can vote to destroy birthright citizenship, the FTC, or anything else they choose. They argue from "history" sometimes, and from "plain text" other times. It's just smoke and mirrors.
At this point, the supreme court are effectively 9 monarchs, accountable to no one but deciding the law for everyone. We the people sit here trying to rationalize them deciding whatever they want. Ironically, this takes the US so far from its initial aim to be free from monarchy and be a country for the people. Arguably the supreme court judges are more protected than the british monarchs, who at least had to fear being deposed in favour of a new family. Now congress are merely their humble subjects, thanks to clever edicts issued by the court. Until the supreme court is packed to the point of being unviable or jurisdictionally stripped, there isn't any difference between their edicts and those of a monarch. You can try to rationalize the monarch as being a benevolent monarch if you so wish, I don't think it matters because they are so inconsistent that they obviously aren't. As you say, there are no 9-0 decisions on anything remotely political.
There are 9-0 decisions on many political topics. I did say they were rarer on politically salient topics.
I might agree with you in part about SCOTUS's oversized power. But your rhetoric is rather overheated, which makes me uncertain about what exactly you are arguing. Your point about the justices being politicized still appears to be quite clearly wrong for at least four of the "conservative" judges and one of the "liberal" ones, and to be honest I strongly suspect it is also true of Sotomayor and Jackson.
If it is overheated to call an unelected body accountable to no one and free to decide the law on any issue from abortion to birthright citizenship on their own edicts and whims then so be it. If you think they just happen to not be corrupt out of the goodness of their hearts and point to an occasionally unpredictable edict then I would call that wishful thinking.
Yes, your rhetoric is completely overheated. You seem to confuse your whims with whimsical actions. I am afraid that you are not particularly convincing.
You can call me whimsical if you want, but remember, that's not an actual rebuttal to my point.