Are We Witnessing “Appeasement”? A Reply to Steve Vladeck
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 i
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