I learned this afternoon that a judge (a Trump appointee, although I’m not sure it matters) has given the green light to eviscerate USAID by dismissing (illegally) and calling home almost all its workers.
Jon, I loved your post highlighting that judges must recognize reality -- instead of cocooning themselves in texualist arguments that maintain that if it's not explicitly mandated in the constitution, then it doesn't exist and, surely, doesn't matter.
When an untoward situation exists, like now, that appears to be a coup against existing or historical norms, it probably is a coup. Like the old maxim -- 'if it walks like a duck...it probably is a duck'.
This dichotomy between textualist and historicists is beautifully discussed by Stephen Breyer (former SCOTUS justice) in his recent book, Reading he Constitution: Why I Chose Pragmatism, Not Textualism (2024).
But for me this issue goes to a deeper psychology: Unfortunately, it seems, throughout much of history, people have wanted to trust what they are told, and have been schooled to believe in, rather than their own observatons and gut-feelings. It seems there is something heretical in believing in one's own feelings, thoughts, observations. This is the situation the autocratic thrives in and fosters.
Unfortunately, too many federal judges live in their own worlds. Not most, not a majority, but enough and strategically located to wreak havoc by choosing not to see beyond the end of their noses. But you're very right about pushing at reality.
Jon, I loved your post highlighting that judges must recognize reality -- instead of cocooning themselves in texualist arguments that maintain that if it's not explicitly mandated in the constitution, then it doesn't exist and, surely, doesn't matter.
When an untoward situation exists, like now, that appears to be a coup against existing or historical norms, it probably is a coup. Like the old maxim -- 'if it walks like a duck...it probably is a duck'.
This dichotomy between textualist and historicists is beautifully discussed by Stephen Breyer (former SCOTUS justice) in his recent book, Reading he Constitution: Why I Chose Pragmatism, Not Textualism (2024).
But for me this issue goes to a deeper psychology: Unfortunately, it seems, throughout much of history, people have wanted to trust what they are told, and have been schooled to believe in, rather than their own observatons and gut-feelings. It seems there is something heretical in believing in one's own feelings, thoughts, observations. This is the situation the autocratic thrives in and fosters.
Unfortunately, too many federal judges live in their own worlds. Not most, not a majority, but enough and strategically located to wreak havoc by choosing not to see beyond the end of their noses. But you're very right about pushing at reality.