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    US supreme court blocks ruling that 16,000 fired federal workers must be rehired

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    The US supreme court has handed Donald Trump a reprieve from a judge’s ruling that his administration must rehire 16,000 probationary workers fired in its purge of the federal bureaucracy.A day after ruling in the White House’s favor to allow the continued deportation of alleged Venezuelan gang members, the court gave the White House a less clear-cut victory in halting the order by a California court that dismissed workers from six government agencies must be rehired.The court struck down by a 7-2 majority last month’s ruling by US district court judge William Alsup because non-profit groups who had sued on behalf of the fired workers had no legal standing.It did not rule on the firings themselves, which affected probationary workers in the Pentagon, the treasury, and the departments of energy, agriculture, interior and veterans affairs.“The district court’s injunction was based solely on the allegations of the nine non-profit-organization plaintiffs in this case,” the unsigned ruling read. “But under established law, those allegations are presently insufficient to support the organizations’ standing. This order does not address the claims of the other plaintiffs, which did not form the basis of the district court’s preliminary injunction.”Two of the court’s three liberal justices, Sonia Sotomayor and Ketanji Brown Jackson, dissented.The victory, though limited, is likely to embolden the Trump administration in the belief that the spate of legal reverses it has faced since taking office can be eventually overturned in the supreme court, which has a 6-3 conservative majority, due largely to three rightwing judges Trump nominated to the bench during his first presidency.The extent of Tuesday’s victory was qualified by the fact that it does not affect a separate order by a judge in Maryland applying to the same agencies plus several others. Judge James Bredar of the Maryland federal district court ordered the administration to reinstate workers in response to a case brought by 19 states and the government of Washington DC.In the California ruling, the court heard how staff were informed by a templated email from the office of personnel management that they were losing their jobs for performance-related reasons. “The Agency finds, based on your performance, that you have not demonstrated that your further employment at the Agency would be in the public interest,” the email said.While accepting that workforce reductions were acceptable if carried out “correctly under the law”, Alsup said workers had been fired for bogus reasons.skip past newsletter promotionafter newsletter promotion“It is sad, a sad day when our government would fire some good employee, and say it was based on performance, when they know good and well, that’s a lie,” he said.In filings to the supreme court, the acting solicitor general, Sarah Harris, argued that Alsup had exceeded his powers.“The court’s extraordinary reinstatement order violates the separation of powers, arrogating to a single district court the executive branch’s powers of personnel management on the flimsiest of grounds and the hastiest of timelines,” she wrote. “That is no way to run a government. This court should stop the ongoing assault on the constitutional structure before further damage is wrought.” More

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      US supreme court allows Trump administration to freeze teacher-training grants

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      The US supreme court is letting the Trump administration temporarily freeze $65m in teacher-training grants that would promote diversity, equity and inclusion (DEI) initiatives in a 5-4 decision.The decision came down on Friday afternoon, with five of the court’s conservatives – Justices Amy Coney Barrett, Neil Gorsuch, Clarence Thomas, Samuel Alito and Brett Kavanaugh – in the majority. Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson all dissented.In the unsigned opinion, the court said that the states made it clear “that they have the financial wherewithal to keep their programs running”, but the Trump administration had a strong case that it would not be able to reclaim any of the funds spent while the lower court’s order remained in place.The cuts to more than 100 programs had been temporarily blocked by a federal judge in Boston, who found that they were already affecting training programs aimed at addressing a nationwide teacher shortage. The federal appeals court in Boston turned away an appeal from the administration to allow them to resume.The emergency appeal is among several the high court is considering in which the justice department argues that lower-court judges have improperly obstructed Donald Trump’s agenda.Friday’s order was the first time in three attempts that the nation’s highest court gave the administration what it wanted on an emergency basis.US district judge Myong Joun issued a temporary restraining order sought by eight Democratic-led states that argued the cuts were probably driven by efforts from Trump’s administration to eliminate diversity, equity and inclusion programs.The Republican president also has signed an executive order calling for the dismantling of the education department, and his administration has already started overhauling much of its work, including cutting dozens of contracts it dismissed as “woke” and wasteful.The two programs at issue – the Teacher Quality Partnership and Supporting Effective Educator Development – provide more than $600m in grants for teacher preparation programs, often in subject areas such as math, science and special education, the states have argued. They said data has shown the programs had led to increased teacher retention rates and ensured that educators remain in the profession beyond five years.Despite Joun’s finding that the programs already were being affected, the high court’s conservative majority wrote that the states can keep the programs running with their own money for now. By contrast, the majority said in an unsigned opinion, the federal government probably wouldn’t be able to recover the cash if it ultimately wins the lawsuit.
      Kagan wrote in dissent that there was no reason for the court’s emergency intervention.“Nowhere in its papers does the Government defend the legality of canceling the education grants at issue here,” Kagan wrote.In a separate opinion, Brown Jackson wrote: “It is beyond puzzling that a majority of Justices conceive of the government’s application as an emergency.”
      The administration halted the programs without notice in February. Joun, an appointee of Democratic president Joe Biden, found that the cancellations probably violated a federal law that requires a clear explanation.The appellate panel that rejected the administration’s request for a stay also was made up of judges appointed by Democrats.California is leading the ongoing lawsuit, joined by Massachusetts, New Jersey, Colorado, Illinois, Maryland, New York and Wisconsin.Boston public schools have already had to fire several full-time employees due to the loss of grant funding, and the College of New Jersey has also canceled the rest of its teacher-residency program. California State University has ended support for two dozen students in a similar program, and eliminated financial assistance for 50 incoming students. More

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      White House asks supreme court to allow deportations under wartime law

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      The Trump administration on Friday asked the US supreme court to intervene to allow the government to continue to deport immigrants using the obscure Alien Enemies Act.The request came one day after a federal appeals court upheld a Washington DC federal judge’s temporary block on immigrant expulsions via a wartime act that allows the administration to bypass normal due process, for example by allowing people a court hearing before shipping them out of the US.Friday’s emergency request claims that the federal court’s order temporarily blocking the removal of Venezuelans forces the US to “harbor individuals whom national-security officials have identified as members of a foreign terrorist organization bent upon grievously harming Americans”.Trump’s invocation of the Alien Enemies Act has spurred a legal battle between the executive and judiciary branches of the US federal government.“We will urge the supreme court to preserve the status quo to give the courts time to hear this case, so that more individuals are not sent off to a notorious foreign prison without any process, based on an unprecedented and unlawful use of a wartime authority,” said Lee Gelernt in a statement on Friday afternoon. Gelernt is the deputy director of the ACLU’s immigrants’ rights project and lead counsel in the case.As the executive branch continues to battle the constitutionally coequal judiciary branch for primacy, the US justice department said in its filing on Friday that the case presents the question of who decides how to conduct sensitive national security-related operations, the president or the judiciary.“The Constitution supplies a clear answer: the President,” the department wrote. “The republic cannot afford a different choice.“On 15 March, Trump invoked the Alien Enemies Act, a wartime statute allowing the government to expel foreign nationals considered to be enemies to the US. When invoking the act, Trump, without proof, claimed that the Venezuelan gang Tren de Aragua had “infiltrated” the US at the behest of the Venezuelan government.A US intelligence document accessed by the New York Times contradicts Trump’s claim about the Venezuelan government’s ties to the gang.That day, attorneys filed an emergency motion to block the use of the Alien Enemies Act to expel migrants to El Salvador. Then planes took off from the US, transporting the nearly 300 immigrants accused of being gang members. As the planes were in mid-air, a federal judge in Washington blocked the use of the Alien Enemies Act to expel the immigrants, but the Venezuelans were not returned to the US.Despite the Trump administration in its supreme court filing claiming that it engaged in a “rigorous process” to identify members of the Venezuelan gang, news stories are increasingly placing those claims into question. Family members of many of the deported Venezuelan migrants deny the alleged gang ties. This month, the US district judge James Boasberg ordered the Trump administration to engage in “individualized hearings” for immigrants accused of being members of Tren de Aragua. More

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      Donald Trump is seeking to erase the United States as we know it | Laurence H Tribe

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      Less than seven weeks into Donald Trump’s second term as president, his administration has set off a new wave of handwringing over what has by now become a familiar question: has the US entered a constitutional crisis?Triggering the latest iteration of that worry, the government hastily deported more than 200 Venezuelan immigrants to a notorious prison in El Salvador, without hearings or evidence and thus without anything even resembling due process of law, pursuant to the US president’s proclamation “signed in the dark on Friday evening” that they constituted an invasion by a foreign state.Trump invoked a 1798 statute last used to intern Japanese Americans during the second world war, buttressed by powers he claimed were inherent in the presidency. Chief judge James E Boasberg of the US district court for the District of Columbia rushed to convene a hearing on the legality of the challenged action as two deportation flights departed from Texas, followed quickly by a third. Moments after the judge ordered them to return so he could rule on a motion barring the deportation, El Salvador’s president, Nayib Bukele, tweeted: “Oopsie … Too late”, with a laughing emoji, even as the court considered whether its order had been defied.The branch of government best able to uncover and safeguard both our noblest traditions and the simple truth in moments such as these – the judiciary – has been hobbled and vilified by Trump and his allies, making wildly irresponsible calls for impeachment that put dangerous targets on the backs of judges who rule in ways they dislike. Even mild-mannered chief justice John Roberts had to cry “foul”. The administration’s cavalier attitude toward courts that fail to do its bidding, exemplified by calls for Boasberg’s removal, seemed to confirm concerns about a looming crisis.But searching for evidence of a “constitutional crisis” in the rapidly escalating clashes of the executive branch with the judicial branch misses the larger cataclysm taking place across the US. This president, abetted by the supine acquiescence of the Republican Congress and licensed by a US supreme court partly of his own making, is not just temporarily deconstructing the institutions that comprise our democracy. He and his circle are making a bid to reshape the US altogether by systematically erasing and distorting the historical underpinnings of our 235-year-old experiment in self-government under law.What we are currently living through is nothing less than a reorganized forgetting of the building blocks of our republic and the history of our struggles, distorting what it means to be American. The body politic is being hollowed out by a rapidly metastasizing virus attacking the underpinnings of our entire constitutional system. Make no mistake. This is how dictatorship grows.Symptomatic of that reshaping is the peculiar emergence, in a duet staged by the president together with the world’s richest man and Trump’s main benefactor, of a co-presidency without precedent in our republic and without even a hint of the irony in such shared power being propagated by ideologues whose mantra has long been the need for a “unitary presidency”.As staffers of the newly minted so-called “department of government efficiency” (Doge) raided congressionally created independent federal agencies and foundations without warning and slashed entire programs without thought, the Trump administration stuttered when asked by the courts to explain who was in charge of the “department” that no Congress had created – and how the leader of that enterprise had somehow acquired the power of the purse that the constitution clearly delegated only to Congress.More than just stonewalling courts and refusing to provide basic information on government activities, the Trump administration has waged war on history itself. Having first debilitated our capacity to act, it is now coming after our capacity to think. The same day Boasberg directed the administration to explain why it had seemingly failed to comply with his order, Doge staffers marched into the Institute of Museum and Library Services (IMLS), the agency responsible for funding many needy public museums, libraries and historic repositories across the country.Like Julius Caesar besieging and burning the Library of Alexandria, the Doge officials descended upon the IMLS to begin the process of gutting the public institutions dedicated to preserving and making widely available the shared memory of our past. It was none other than Benjamin Franklin whose conception of public libraries democratized knowledge and made it accessible to ordinary people. What used to be the private province of the few became the public province of the many.The attack on the IMLS is only the latest episode of the Trump presidency’s attempt to privatize information while replacing authentic history with a version more to its liking. As internet archivists race to back up the nation’s files and records, Trump administration officials have been systematically purging government websites in real time of the tools, concepts and language we need to act as informed citizens. In response to secretary of defense Pete Hegseth’s order to remove “diversity” content from the department’s platforms, the Pentagon took down pages about the Holocaust, September 11, cancer awareness and suicide prevention. So too, the Department of Agriculture deleted entire datasets and resources that farmers relied on to identify ways of coping with heat waves, droughts, floods and wildfires. Websites belonging to the Small Business Administration and Arlington National Cemetery scrubbed their platforms of photographs and references to women, LGBTQ+ individuals and people of color, including facts about American heroes such as Jackie Robinson or Gen Colin Powell.Taken together, these events of the past few weeks reveal an alarmingly rapid collapse of what gives the United States constitution life and meaning. Its words may remain unchanged, but its role in our lives is crumbling before our eyes. Looking for a decisive explosion or a moment of crisis – what physicists call a singularity – in the chaotic onrush of presidential provocations is a fool’s errand, one calculated to disarm the resistance without which we will surely be doomed.The seeds of our ongoing disintegration long precede Trump’s rise to power. They were planted decades ago by strategic politicians who dressed rightwing ideologies in conservative garments, permitting the darkest angels of our nature to take hold and to reach a climax in fake claims of a stolen election that led to an insurrection in our country’s capital, followed first by the Senate’s abdication of its duty in Trump’s second impeachment trial (on the bogus ground that the trial had begun too late to give the Senate jurisdiction) and next by the US supreme court’s gifting of Trump – and every future president – with a nearly absolute immunity transforming the office from one restrained by law to a source of virtually limitless power.Rarely noted is how this frightening power to ignore federal criminal law has been conferred not only on the president but on his legions of loyal lieutenants, from public officials to private militias. Because the constitution itself gives presidents an unbridled power to pardon others – a power Trump reveled in employing to free from prison the violent insurrectionists that he had himself helped unleash – we now live under a system in which any president can license his trusted followers to commit crimes to consolidate his power and wealth, making clear that a pardon awaits them should they face federal prosecution. The upshot is that privateers in league with the president can safely ignore federal laws criminalizing corrupt evasion of rules designed to protect public health and safety while they casually usurp powers the constitution gave to Congress, moving so fast and breaking so much that not even genuinely independent federal courts can keep pace with the mayhem.In his iconic poem The Hollow Men, TS Eliot a century ago famously wrote: “This is the way the world ends / This is the way the world ends / … /Not with a bang but a whimper.” Rooted in our past, the anti-democracy virus has reached a fever pitch as it ravages the body politic and revises all traces of our history. It’s a virus we must fight with all the energy we can muster if we don’t want our system of self-government under law to die – not in a sudden explosion but with a quiet whimper.The tragedy is that too many politicians and organizations are caving in without a fight, leading others to follow suit. With each surrender, Trump and his minions not only grow more emboldened but cement their hold on power by cracking down on all who dare oppose them in court, including lawyers who come to the aid of the administration’s enemies.Without more courageous leaders – including Republican officeholders who fear being primaried by candidates backed by limitless wealth – and without more bravery on the part of corporate CEOs whose fortunes can be threatened by Trump, elite lawyers whose business can shrivel if Trump targets them, and ordinary citizens understandably fearing online threats and worse, this darkness will be our destiny as we are reduced to mere memories and then relegated to the vast wasteland of the forgotten.

      Laurence H Tribe is the Carl M Loeb University professor and professor of constitutional law emeritus at Harvard Law School. Meriting special thanks and acknowledgment is his research assistant, Radhika M Kattula, a third-year law student at Harvard Law School. More

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      Chief justice rebukes Trump for call to impeach judge hearing deportation case

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      John Roberts, the chief justice of the US supreme court, delivered a rare rebuke on Tuesday of Donald Trump after the US president demanded the impeachment of a federal judge who had issued an adverse ruling against the administration blocking the deportation of hundreds of alleged Venezuelan gang members.“For more than two centuries, it has been established that impeachment is not an appropriate response to disagreement concerning a judicial decision,” Roberts said in a statement. “The normal appellate process exists for that purpose.”The statement came hours after Trump assailed the chief US district judge in Washington DC, James Boasberg, for issuing a temporary restraining order halting deportations under the Alien Enemies Act of 1798 that gives the president the power to conduct removals without due process.“This judge, like many of the Crooked Judges I am forced to appear before, should be IMPEACHED!!!” Trump wrote about Boasberg, labelling him a “Radical Left Lunatic of a Judge” and a “troublemaker”.View image in fullscreenTrump’s personal attack against Boasberg reflected his broader resentment at being increasingly constrained in recent weeks by court orders he believes are wrong, and his frustration at having his signature deportation policy be halted while subject to legal scrutiny.It also followed the administration’s attempt to have Boasberg thrown off the case, complaining in a letter to the clerk of the US court of appeals for the DC circuit – a bizarre way to force a recusal – on grounds that he had overreached by improperly turning the matter into a class-action lawsuit.According to the statute, the Alien Enemies Act can be invoked in the event of war, which only Congress can declare under the US constitution, or in the event of “predatory incursions” by state actors that amount to an invasion.The Trump administration’s use of the law rests on the second clause concerning incursions. In court filings, the administration has said Trump determined that the US was being invaded by members of the Tren de Aragua gang in Venezuela, which acted as a proxy for the Venezuelan government.Trump has the power as president to declare an incursion under the Alien Enemies Act, the filing said, and his decision was unreviewable by the courts following the US supreme court’s 1948 decision in Ludecke v Watkins, which said that whether someone was an enemy alien was up to the president.But Trump and his political allies appeared to have conflated two issues; federal courts can still review whether Trump satisfied the conditions to declare an incursion under the Alien Enemies Act in the first instance.The problem for the Trump administration is that in deciding Boasberg’s injunction blocking the deportation flights was unlawful, they ignored a verbal order from the judge at an emergency hearing on Saturday to turn around any deportation flights that had already departed.That opened a second legal battle for the administration where the justice department was left to argue at a hearing on Monday that the orders had been unclear and that, in any event, Boasberg’s authority to compel the planes to return vanished the moment they left US airspace.The extraordinary defenses by the administration suggested the White House took advantage of its own perceived uncertainty to do as it pleased, testing the limits of the judicial system to hold to account government officials set on circumventing adverse rulings.At the hearing, the administration claimed it did not follow Boasberg’s verbal instruction to turn around planes that had already departed, because it had not been repeated in the written injunction he issued at 7.25pm ET on Saturday.skip past newsletter promotionafter newsletter promotion“Oral statements are not injunctions and the written orders always supersede whatever may have been stated in the record,” Abhishek Kambli, the deputy assistant attorney general for the justice department’s civil division, argued for the administration.The judge appeared unimpressed by that contention. “You felt that you could disregard it because it wasn’t in the written order. That’s your first argument? The idea that because my written order was pithier so it could be disregarded – that’s one heck of a stretch,” Boasberg said.Kambli also suggested that even if Boasberg had included the directive in his written injunction, by the time he issued the temporary restraining order the deportation flights had been outside the judge’s jurisdiction.Boasberg expressed incredulity at that argument, too, explaining that federal judges still have authority over US government officials who make the decisions about the planes and that he had had the authority to order their return, even if the planes had been outside US airspace.The Trump administration opened a third legal front in the Alien Enemies Act case, after it asked Boasberg in a late-night 35-page filing on Monday to dissolve the injunctions and dismiss the case.The administration is currently subject to two injunctions: one order preventing the deportation of five Venezuelans who filed the initial suit challenging the use of the Alien Enemies Act, and a second order from Boasberg that expanded the initial order to cover anyone being removed under the Alien Enemies Act.Administration lawyers affirmed in a separate filing on Tuesday that no deportation flights had departed the US after Boasberg’s written injunction had been issued on Saturday evening. Two flights took off before his 7.25pm ET order. One flight took off after, but that plane carried immigrants who were being deported under a different authority from the Alien Enemies Act. More

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      ‘She is evil’: Amy Coney Barrett under attack by right wing after USAid ruling

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      Amy Coney Barrett, the Donald Trump-appointed conservative supreme court justice, has been branded a “DEI judge” by furious rightwing figures, after she voted to reject Trump’s attempt to freeze nearly $2bn in foreign aid.Coney Barrett, part of the court’s rightwing majority, split with her fellow conservative justices this week. She and John Roberts, the chief justice, voted to leave in place a ruling from a US district judge that ordered the Trump administration to unfreeze the nearly $2bn in aid for foreign aid work that had already been performed, and that had been approved by Congress.The reaction from pro-Trump rightwing commentators and activists was swift.“She is evil, chosen solely because she checked identity politics boxes. Another DEI hire. It always ends badly,” Mike Cernovich, a prominent rightwing influencer and conspiracy theorist, wrote on X, referencing diversity, equity and inclusion policies, which Republicans have demonized.Fox News host Mark Levin claimed in an online post that Barrett had “deceived people into thinking she was a reliable constitutionalist”. He added: “The power has gone to her head. It happens with frightening regularity the last half-century.”Laura Loomer, the rightwing activist who repeatedly traveled with Trump during his 2024 campaign, went even further. She posted a picture of Coney Barrett’s family, which includes two adopted Black children, and wrote: “Amy Coney Barrett was a DEI appointee.” Jack Posobiec, a popular Maga figure with more than 3m followers on X, posted that Coney Barrett was a “DEI judge”.Mike Davis, who was involved in the effort to confirm Trump nominees Neil Gorsuch and Brett Kavanaugh to the supreme court, appeared on Steve Bannon’s podcast to add his voice to the criticism.“She’s a rattled law professor with her head up her ass,” Davis said of Coney Barrett.He added: “As we work with the Trump 47 administration on the next supreme court list, we’re going to be looking for more bold, more fearless, less DEI, and people who are going to be more of a sure bet.”The branding of Coney Barrett as a liberal judicial figure will come as a surprise to those familiar with her work and legal history.Her appointment to the supreme court in October 2020 cemented the court’s 6-3 conservative majority, and she voted to overturn Roe v Wade, which established the right to abortion in the US, in 2022. An analysis by the Empirical Scotus website found that Barrett voted with Clarence Thomas and Samuel Alito – the court’s two most conservative justices – more than 80% of the time in 2023.However, before the vote to reject Trump’s attempt to withhold aid, she had sided with liberal justices to deny Trump’s request to delay sentencing in his New York hush-money case, and joined a dissent against a conservative-led decision that weakened rules on the discharge of raw sewage. More

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      Will Trump put a Fox News host on the US supreme court? Mark Tushnet can’t rule it out

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      Should Donald Trump get the chance to nominate a new justice to the supreme court, to join the three rightwingers he installed in his first term, he might pick “the equivalent of Pete Hegseth”, Mark Tushnet said, referring to the Fox News host who is now US secretary of defense.“Trump as a person has his idiosyncrasies, I’ll put it that way,” Tushnet said, from Harvard, where he is William Nelson Cromwell professor of law, emeritus. “And … I have thought about potential Trump nominees, and actually, what comes to mind is the equivalent of Pete Hegseth: a Fox News legal commentator.”Justice Jeanine Pirro? It’s a thought. Perhaps future historians will debate “The Box of Wine that Saved Nine”. Perhaps not.“I wouldn’t rule it out,” Tushnet said, of his Fox News theory, if not of Pirro, per se. “I don’t think it’s highly likely, but given the way those things work, and given the idea that you want people who aren’t simply judges, it’s not a lunatic thought, I guess.”The reference to “people who aren’t simply judges” is to arguments laid out in Tushnet’s new book, Who Am I to Judge?, in which he makes his case against the prevalence of judicial theories, particularly originalism, to which conservatives adhere, and calls for a rethink of how justices are selected.Tushnet is a liberal voice. Provocatively, he writes that Amy Coney Barrett, the third Trump justice who in 2022 helped remove the federal right to abortion, at least has a hinterland different from most court picks, as a member of People of Praise, a hardline Catholic sect.“I think her involvement in that group has exposed her to a much wider range of human experience than John Roberts’s background, for example,” Tushnet said, referring to the chief justice who was a Reagan White House aide and a federal judge. “And so if you’re looking for people who have been exposed to human experience across the board, I think she’s a reasonable candidate for that.”View image in fullscreenConey Barrett cemented the 6-3 rightwing majority that has given Trump wins including rejecting attempts to exclude him from the ballot for inciting an insurrection and ruling that presidents have some legal immunity. Now, as Trump appears to imagine himself a king and oversees an authoritarian assault on the federal government, reading Tushnet and talking to him generates a sort of grim humor.Looking ahead, to when Trump’s executive orders might land before the justices, Tushnet suggests “the court will put … speed bumps in the way of the administration. They won’t say: ‘Absolutely you can’t do it,’ except the birthright citizenship order.”That order, signed on Trump’s first day back in power, seeks to end the right to citizenship for all children born on American soil and subject to US jurisdiction, as guaranteed under the 14th amendment since 1868.On 23 January, a federal judge said Trump’s order was so “blatantly unconstitutional” that it “boggled” his mind. Should it reach the supreme court, Tushnet can see the rightwing justices “saying: ‘Look, yeah, if you want to do this, we’re not saying you can, but if you want to do it, you got to get Congress to go along. You can’t just do it on your own.’ So that would be a speed bump.”That said, Tushnet sometimes thinks “about how in the US, there are these traffic-calming measures that are literally speed bumps but sometimes, if you go over too fast, you fly”. Trump, he said, has licensed rightwing justices to take decisions that “may not count as speed bumps if you fly off them”.Tushnet was happy to answer a question he thinks all supreme court nominees should be asked: what’s your favorite book and favorite movie?Tushnet’s favorites are Middlemarch by George Eliot and Heaven, a 2002 film directed by Tom Tykwer from a script co-written by Krzysztof Kieślowski. He wrote his book containing such questions, he said, “because I had this longstanding sense that the [supreme court] nomination process has gotten off the rails, mostly by focusing exclusively on judges as potential nominees, and secondarily by focusing on constitutional theory.“For the past 20 years, the court … has been dominated by people whose background was as judges or appellate advocates, and historically that was quite unusual. There are always some judges but there always had been people with much broader kinds of experience, including a former president, William H Taft [chief justice between 1921 and 1930], and several candidates for the presidency, including Charles Evans Hughes [1916], Earl Warren [a vice-presidential pick in 1948], senators like Hugo Black. And those people had disappeared from consideration for the court, and that seemed to be a bad idea.”Tushnet describes a “political reconstitution of the nomination process provoked in large measure by the Republican reaction to the Warren court”, which sat from 1953 to 1969, the era of great civil rights reforms.“I think their view was the Warren court was not composed of judges, they were politicians, some called them ‘politicians in robes’, and Republicans sort of thought the way to get away from the substantive jurisprudence of the Warren court was to put judges on the court, rather than people with what I call broad experience,” Tushnet said.One justice on the current court was not previously a judge: Elena Kagan, one of the three besieged liberals, was dean of Harvard Law School, then solicitor general under Barack Obama.Tushnet “went into the project thinking that I would find more great justices who had been a politician than I actually did. When I was teaching, I would do this thing about who the justices were who decided Brown v Board of Education”, the 1954 ruling that ended segregation in public schools, “and I think it’s fair to say that not one of them’s primary prior experience was as a judge, and like seven or eight of their prior primary experiences were as a politician. And if Brown v Board is the premier achievement of the supreme court, the fact that it was decided by a court primarily made up of politicians counts in favor of thinking about politicians when appointing to the court.”“Why not do it? For me, the main feature of having been a politician is not that you’ve taken stances aligned with one or another political party at the time, but that you’ve provided reasons in many different ways, you’ve grown up amongst people with a wide range of life experiences that you’ve had to think about, as a politician, in order to get their votes, in order to get your way,” he said.Tushnet’s ideal might be Charles Evans Hughes, an associate justice from 1910 to 1916 and chief justice between 1930 and 1941, but also governor of New York, Republican candidate for president and US secretary of state.On the page, Tushnet imagines asking Hughes a question – “What constitutional theories do you use?” – and getting an appealing answer: “I try to interpret the constitution to make it a suitable instrument for governance in today’s United States.”Tushnet says modern judges and justices should say the same, rather than reach for judicial theories. His new book is in part an answer to a demolition of originalism by Erwin Chemerinsky, dean of UC Berkeley law school: “I distinguish, I think, more clearly than other people have, including Erwin, between what I call academic originalism and judicial originalism.”Either form of originalism concerns working out what the founders meant when they wrote the constitution, then advocating its application to modern-day questions. Tushnet “think[s] a good chunk of academic originalism is not subject to many of the criticisms that Erwin levels. It’s not perfect but it’s an academic enterprise, and people work out difficulties, and there’s controversy within the camp and so on.View image in fullscreen“Judicial originalism is different because it has a couple of components. One is, we now know it’s quite selective. To get originalism into the TikTok decision, for example, you have to do an enormous amount of work. It’s not impossible, but it’s not an originalist opinion, fundamentally. So [justices are] selectively originalist, or, as my phrase is, opportunistically originalist. They use it when the sources that they’re presented with support conclusions they would want to reach anyway, and the adversary process at the supreme court isn’t a very good way of finding out what they say they’re trying to find out. And so as a judicial enterprise, originalism just doesn’t do what it purports to do.”To Tushnet, the late Antonin Scalia, an arch-conservative and originalist, is “the leading candidate to be placed on a list of great justices” of the past 50 years, “because of his influence and his contributions to the court.“But one bad contribution was his widely admired writing style. Now, writing styles change over time. And having read an enormous number of opinions of the 1930s, I know there’s an improvement in readability since the 1930s. But the idea that [opinions] become more readable, accessible and memorable by including Scalia-like zingers, short phrases that are quotable and memorable, seems to be just a mistake. But he’s very influential, and so people try to emulate him … Justice Kagan does it in a gentler way. I guess my inclination would be to say: ‘If you’re going to do it, do it the way Justice Kagan does, rather than the way Justice Scalia did.’”Tushnet agrees that some of Scalia’s pugilistic spirit seems to have passed into Samuel Alito, the arch-conservative author of the Dobbs v Jackson ruling, which removed abortion rights, if while shedding all vestiges of humor.In his book, Tushnet shows how Alito’s Dobbs ruling contained a clear mistake, the sort of thing that is largely down to the role clerks play in drafting opinions, as Tushnet once did for Thurgood Marshall, the first Black American justice.“Times were quite different then,” Tushnet said. “The year I was there, the court decided 150 cases. Now they’re deciding under 50 a year … the year I was there was the year Roe v Wade was decided [1973, establishing the right to abortion, now lost]. It had been resolved fundamentally the year before, so they were just cleaning things up, but we knew these were consequential decisions.”The court will soon have more consequential decisions to make. In the meantime, talk of a constitutional crisis, of a president defying the courts, grows increasingly heated.“My sense is that we’re not at the crisis point yet,” Tushnet said. “Like many administrations before it, the Trump administration is taking aggressive legal positions, which may or may not be vindicated. If they’re not vindicated, they’re muttering about what they’ll do. That’s happened before.“My favorite example is that in the 1930s, Franklin Roosevelt, while a major decision was pending, had his staff prepare two press releases, one saying: ‘Actually the court has upheld our position,’ the other saying: ‘The court mistakenly rejected our position, and we’re going to go ahead with it anyway.’ Now, they didn’t have to issue that press release, because the court went with the administration. But, you know, muttering about resistance is not historically unusual. Resisting would be quite, quite dramatic, but we’re not there yet.”

      Who Am I to Judge? is published by Yale University Press More

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      Trump’s firing of watchdog agency chief illegal and would give ‘license to bully officials’, judge rules

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      A US judge on Saturday declared president Donald Trump’s firing of the head of a federal watchdog agency illegal in an early test of the scope of presidential power likely to be decided at the US supreme court.US district judge Amy Berman Jackson in Washington had previously ruled that Hampton Dellinger, head of the Office of Special Counsel who is responsible for protecting whistleblowers, could remain in his post pending a ruling.Jackson said in her ruling on Saturday that upholding Trump’s ability to fire Dellinger would give him “a constitutional license to bully officials in the executive branch into doing his will”.The justice department filed a notice late on Saturday saying it was appealing against Berman’s ruling to the US court of appeals for the district of Columbia.Dellinger, who was appointed by Democratic president Joe Biden and approved by the Senate to a five-year term last year, said in an email to Reuters he was “grateful to see the court confirm the importance and legality of the job protections Congress afforded my position”.He added his “efforts to protect federal employees generally, and whistleblowers in particular, from unlawful treatment will continue”.Lawyers for the Trump administration have argued that the order keeping Dellinger in place is an encroachment on Trump’s authority over officials serving in his administration.Jackson, who was named to the bench by president Barack Obama, rejected the contention that the statute is unconstitutional, saying the special counsel’s job is to review unethical or unlawful practices directed at federal civil servants and help whistleblowers act without suffering reprisals.“It would be ironic, to say the least, and inimical to the ends furthered by the statute if the special counsel himself could be chilled in his work by fear of arbitrary or partisan removal,” Jackson wrote.The Trump administration previously urged the US supreme court, which has already delayed a ruling in the case, to get involved earlier this week.Trump has sought to rein in the independence of federal agencies like the Federal Trade Commission, the Securities and Exchange Commission and the Federal Communications Commission and a ruling in Dellinger’s case could help determine the extent of his authority to do so.Jackson said her ruling was “extremely narrow” and did not diminish Trump’s powers. “This is the only single-headed agency left for the courts to consider, and it is unlike any of them,” she wrote.The acting solicitor general, Sarah Harris, said earlier that Dellinger’s continued work as special counsel was harming the Trump administration, pointing to Dellinger’s role on Tuesday in halting the firing of six probationary government workers the administration had sought to dismiss. More

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      US supreme court temporarily blocks firing of head of federal whistleblower protection office

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      The US supreme court on Friday temporarily kept on the job the head of the federal agency that protects government whistleblowers, in its first word on the many legal fights over the agenda of Donald Trump’s second presidency.The justices said in an unsigned order that Hampton Dellinger, head of the office of special counsel, could remain in his job at least until Wednesday. That’s when a lower-court order temporarily protecting him expires.With a bare majority of five justices, the high court neither granted nor rejected the administration’s plea to immediately remove him. Instead, the court held the request in abeyance, noting that the order expires in just a few days.US district judge Amy Berman Jackson has scheduled a Wednesday hearing over whether to extend her order keeping Dellinger at his post. The justices could return to the case depending on what she decides.Conservative justices Neil Gorsuch and Samuel Alito sided with the Trump administration, doubting whether courts have the authority to restore to office someone the president has fired. Acknowledging that some presidentially appointed officials have contested their removal, Gorsuch wrote that “those officials have generally sought remedies like backpay, not injunctive relief like reinstatement”.Liberal justices Sonia Sotomayor and Ketanji Brown Jackson would have rejected the administration’s request.The conservative-dominated court has previously taken a robust view of presidential power, including in last year’s decision that gave presidents immunity from prosecution for actions they take in office.The justice department employed sweeping language in urging the court to allow the termination of the head of an obscure federal agency with limited power. Acting solicitor general Sarah Harris wrote in court papers that the lower court had crossed “a constitutional red line” by blocking Dellinger’s firing and stopping Trump “from shaping the agenda of an executive-branch agency in the new administration’s critical first days”.The office of special counsel (OSC) is responsible for guarding the federal workforce from illegal personnel actions, such as retaliation for whistleblowing. Its leader “may be removed by the president only for inefficiency, neglect of duty or malfeasance in office”.Dellinger was appointed by Joe Biden – who ended Trump’s first presidency by winning the 2020 election – and was confirmed by the Senate to a five-year term in 2024.“I am glad to be able to continue my work as an independent government watchdog and whistleblower advocate,” Dellinger said in a statement. “I am grateful to the judges and justices who have concluded that I should be allowed to remain on the job while the courts decide whether my office can retain a measure of independence from direct partisan and political control.”Harris said the court should use this case to lay down a marker and check federal judges who “in the last few weeks alone have halted dozens of presidential actions (or even perceived actions)” that encroached on Trump’s presidential powers.The court already has pared back a 1935 ruling, known as Humphrey’s Executor, that protected presidentially appointed and Senate-confirmed leaders of independent agencies from arbitrary firings.Conservative justices have called into question limits on the president’s ability to remove the agency heads. In 2020, for instance, the court by a 5-4 vote upheld Trump’s first-term firing of the head of the Consumer Financial Protection Bureau (CFPB).Chief justice John Roberts wrote for the court that “the President’s removal power is the rule, not the exception”. But in that same opinion, Roberts drew distinctions that suggested the court could take a different view of efforts to remove the whistleblower watchdog. “In any event, the OSC exercises only limited jurisdiction to enforce certain rules governing Federal Government employers and employees. It does not bind private parties at all or wield regulatory authority comparable to the CFPB,” Roberts wrote.The new administration already has indicated it would seek to entirely overturn the Humphrey’s Executor decision, which held that Franklin D Roosevelt could not arbitrarily fire a Federal Trade Commission member during his presidency. Trump has taken aim at people who are on the multimember boards that run an alphabet soup of federal agencies, including the National Labor Relations Board and the Merit System Review Board.Like Dellinger, they were confirmed to specific terms in office and the federal laws under which the agencies operate protect them from arbitrary firings. Lower courts have so far blocked some of those firings. More