Are We Witnessing "Appeasement"? A Reply to Steve Vladeck

A defense to Steve Vladeck's critique and a brief comment on Adrian Vermeule's related op-ed in the New York Times.

Professor Steve Vladeck has responded to my Civitas Outlook column and blog post suggesting he has wrongly characterized the Supreme Court's principled formalist jurisprudence for appeasement of the Trump Administration. He claims my criticism of him is "misdirected," my defense of the Court relies on "cherry-picking," and that my defense of the Court is incongruous because one cannot defend the Court for being principled if it does not articulate its principles. He further critiques a New York Times op-ed by Adrian Vermeule which makes some arguments parallel to mine, but which also endorses a more radical response than I have endorsed.

For reasons I will briefly explain below, I stand by my prior assessment in every respect, including the qualifications I have already noted. I also believe much of Vermeule's critique of district courts is well taken. I part company with Vermeule, however, when he suggests that district court overreach and a departmentalist view of the Constitution justify outright defiance of court orders.

Vladeck's first complaint is that my criticism of his accusation that the Court is engaged in "appeasement" worth of comparison to Neville Chamberlain is "misdirected" because he was merely responding to and characterizing claims by others. However Vladeck may have framed his claim elsewhere, I do not think that is a plausible characterization of his remarks at the National Constitution Center which prompted my column. In those remarks, he made clear that the is "no other way to describe what the Court is doing in these cases" in terms that can be summarized as "appeasement" and that "at least some members of the Court may not see themselves as, but are very much acting like, Neville Chamberlain." But don't just take my word for it; roll the tape.

So while Vladeck may now clam he is neither the source nor an adherent of the "appeasement" thesis, he quite expressly embraced it before a live audience at the NCC.

I also do not think it is quite right that the characterization of the Court he attributes to others (in particular Will Baude) is fair or complete. In his reply he says "it was Baude who laid out the idea that some of what the Court is doing in these cases is playing for time" (in an NYT discussion on the Court). I will let Baude speak for himself, but I don't think Vladeck fairly or completely characterizes the argument.

In that discussion, Baude first notes his view that the Court has handled the Trump Administration petitions "about as well as we could realistically expect." He then went on to note two possible ways of characterizing the Court's behavior, only one of which Vladeck repeats. Here's the full quote, with the omitted portion in bold:

If we want to be formalists about it, the government has been pretty savvy about the vehicles it brings to the court and the way it litigates them (as we discussed, re: CASA). And if we want to be more realistic about it, even if you wanted the court to maximally stop the Trump administration, surely it would need to pick and choose its spots carefully. There's just too much lawlessness to do otherwise.

As I read it, Baude is noting there is a formalist defense of the Court's actions (of the sort I set out in my column), but that if one wants to take a legal realist view of the Court, it is hard to expect the Court to be more aggressive than it has been because the Court has to "pick and choose" which cases to hear, which petitions to grant, and so on. Later he notes that one should not expect the Court to intervene forcefully where its jurisdiction is questionable. That's prudence, and shows a proper respect for the limits of the Court's own authority. Nowhere, however, does Baude suggest the Court is "playing for time" or otherwise engaging in what would be fairly called appeasement.

Insofar as there is "cherry picking" going on here, I think it is being done by the Trump Administration. Of the dozens and dozens of adverse court decisions, the Administration has sought relief from the Supreme Court in only a handful, and in some of those cases its requests have been quite narrow (much as it only sought review of the universal injunction question in Trump v. CASA). The Trump Administration has a strong record here because it has not brought its weakest cases before the Court--and that is how it should be. I focused on the two cases I did (AFGE and McMahon) because one was issued the day of the NCC event (8-1, natch), and the other presented nice parallels with issues that arose under prior administrations (when lower courts, particularly the courts of appeals that Vladeck scores me for ignoring, discharged their responsibilities in a more faithful and neutral fashion). I also believe they are largely representative of much of what we have seen over the past several months.

In my view, the lion's share of the orders granting Trump Administration requests for extraordinary relief can be understood as corralling particularly wayward district courts--courts that seem to believe that Trump Administration excesses justify adopting a more elastic conception of the judicial power.  Justice Jackson may adhere to such a view (as suggested by her Trump v. CASA dissent), but I do not and, more importantly, nor do six of the Court's other justices.

I am also not sure Vladeck disagrees. In his reply he writes: "It's not overreach for a district court to be wrong; it's overreach for them to exercise power they don't have." Precisely! It seems, then, that we disagree on how often it is fair to suggest that district courts have acted ultra vires or in excess of their authority, and whether one can view the Court's actions in this light if it has not issued an opinion saying so. I also do not fault the Court for not engaging in a weighing of the equities in cases in which the lower court did not have the jurisdiction to engage in any such weighing in the first place.

I readily confess that there are some cases that do not quite fit this mold, such as Wilcox and Boyle, but I do not think such cases substantiate Vladeck's case. As I've noted before, I think Wilcox was "predictable and reasonable," and the lower courts should have gotten the message in Boyle. I also suspect that some of the justices might question whether it could ever be appropriate to enjoin the removal of an officer. Humphrey's Executor can hardly be said to stand for such a proposition, and loss of a job is rarely treated as an irreparable harm.

I agree with Vladeck that, all else equal, it would be nice for the Court to offer more explanation for is actions. As an academic, I would love the opportunity to examine and interrogate the Court's reasons and rationales. But, as Justice Kavanaugh noted at the Eighth Circuit Judicial Conference, there are trade offs. Writing opinions takes time, and rushing out opinions risks error. Accordingly, not every order will be explained. This is nothing new--and it hardly constitutes "appeasement."

I also disagree with Vladeck that we cannot understand the basis for many of these orders given the content of the briefing and a broader understanding of how courts can and should treat aggressive claims against executive branch action (which was why I spent time discussing episodes from prior administrations).

I am no more scandalized by the Court's failure to offer opinions explaining these orders than I was when the Supreme Court stayed the lower court order that threatened to take mifepristone off the market. When a lower court order is particularly out of line and threatens to be disruptive, the better course is often to act swiftly, even if that means foregoing the issuance of an opinion, particularly where (as occurred in the mifepristone litigation) there may be time later to address the relevant issues more fully. And if, unlike as occurred in the social cost of carbon E.O. litigation, circuit courts do not corral district courts, sometimes the justices will step in.

I could say more, but there are only so many hours in a day, so I will move on. (There's that darn trade-off again.)

As for Professor Vermeule's op-ed, I agree generally with his charge that some district courts have failed to heed the Supreme Court's guidance and respect the limits on their own power, but I would not go so far as to suggest that the Trump Administration has clean hands. I also reject his suggestion that a departmentalist view of the Constitution (with which I largely agree) justifies the executive branch simply disregarding district court orders.

Inferior courts are inferior to the Supreme Court, not the executive branch, and they still exercise the judicial power. It is inevitable that such courts will err in some number of cases, and there are a range of remedies available. Appeals and (if justified) emergency applications should handle the mine run of cases, and more aggressive steps (such as judicial sanction and reassignment or impeachment) can be brought out if individual judges fail to get the message.

Absent truly extreme circumstances (such as armed conflict within our borders) simply disregarding a court order is not a proper response to judicial overreach. So, as Lincoln suggested, executive branch nonaquiescence is an acceptable way to push back against he judiciary, as is refusal to accept the judiciary's legal interpretations. But this doesn't mean defying a discreet court order (e.g. refusing to release an accused individual when acquitted by a court), but may mean refusing to follow the substance of the order in other cases that were not before the court (e.g. bringing new prosecutions).

District courts have repeatedly overreached in cases brought against the Trump Administration over the past six months. These aren't the first cases of consequence in which district courts have erred, and they will not be the last. And they are not a judicial coup or insurrection of the sort than cannot be addressed through traditional institutional means. Indeed, that is part of what the Supreme Court has been doing on the "shadow docket."  Executive overreach is a real concern--perhaps now more than ever--it does not justify the judiciary responding in kind.