sDonald Trump will nominate new justice to the Supreme Court and have the opportunity to join the three right wings he set up in his first term. He might choose “peat Hegses equivalent,” Mark Tushnett mentioned the Fox News host, now the US Secretary of Defense.
“Trump as a person has his peculiarity, I put it that way,” Tushnet said from Harvard. “And… I thought of a potential Trump candidate. In fact, what comes to mind is the equivalent of Pete Hegseth: A Fox News Legal Commentator.”
Judge Johnine Pillo? That’s an idea. Perhaps future historians will argue about “the box of wine that saved the nine.” Probably not.
“I won’t rule that out,” Tushnet said of his Fox News Theory, if not Pirro in itself. “I don’t think that’s very likely, but given the way those things work, I don’t think it’s a crazy idea given the idea that you want people who aren’t just judges.”
The reference to “people not merely judges” is a discussion mentioned in Tushnet’s new book, “Who Am I Mud York?”
Tushnet has a liberal voice. Provocatively, he writes that Amy Connie Barrett, the third Trump Justice who helped remove federal rights to abortion in 2022, has at least a different hinterland from most court picks.
“I think her involvement in that group, for example, exposed her to a much wider range of human experiences than John Roberts’ background,” Tushnet mentioned the Supreme Court Justice, an aide and federal judge at the Reagan White House. “So, if you’re looking for people who are fully exposed to human experiences, I think she’s a reasonable candidate for that.”
Connie Barrett has refusing to solidify the 6-3 right-wing majority that gave Trump a victory, rejecting attempts to remove him from the vote, and refuses to incite a ruling that the president has a legal exemption. Now it appears that Trump imagines himself as king, overseeing authoritarian attacks on the federal government, reading Tushnet and talking to him creates some kind of harsh humor.
When Trump’s executive order may land before justice, Tushnet says, “The courts… speed up getting in the way of the administration. They don’t say, “Absolutely you can’t do that.”
The order was signed on the first day of Trump’s return to power and aims to end the citizenship of all children born in American soil and subject to US jurisdiction, as guaranteed under the 14th Amendment since 1868.
On January 23, a federal judge said Trump’s orders were “shaking” his heart because they were so “blatantly unconstitutional.” If it reaches the Supreme Court, Tushnet can see the judge on the right. You can’t do that yourself. “That would be a speed bump. ”
That said, Tushnet sometimes thinks, “In the US, there are measures of these traffic circulation, which are literally speed bumps, but if you’re too fast, you can fly.” He said Trump has approved right-wing justice to make a decision that “may not count as a speed bump if you fly them.”
Tushnet was happy to answer any questions that all Supreme Court candidates think should be asked: What is your favourite book and film?
Tushnet’s favorite is 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, “Because I had this long-standing sense that the nomination process (of the Supreme Court) was off the rails, primarily by focusing only on judges as potential candidates, and secondly on constitutional theory.
“For the past 20 years, courts have been ruled by people who are historically unusual in history, with backgrounds as judges and defenders of appeals. There are always judges, but there have always been people with broader experience, including former president William H. Taft (Supreme Court Justice 1921-1930), and several candidates for the presidency, including Charles Evans Hughes (1916), Earl Warren (Vice President Pick in 1948), and Hugo Black. And because those people had disappeared from court considerations, it seemed like a bad idea.”
Tushnet describes “the political restructuring of the nomination process that was greatly induced by Republican reaction to the Warren Court.”
“Their view is that Warren Court was not a judge, it was a politician, and some people called them “politicians in their robes.” And Republicans saw it as a way to escape the substantial jurisprudence of Warren Court.
One of the current court justices was not a judge before. Elena Kagan, one of the three besieged Liberal parties, was the dean of Harvard Law School and was attorney at the time under Barack Obama.
Tushnet said, “I took part in the project thinking that I would find great justice that was a politician than I actually did. When I was teaching, I do this about who the judicial lie, a 1954 ruling that ended the separation in public schools. And the fact that if the Brown V Committee is the best outcome of the Supreme Court, it was decided by a court made up primarily of politicians, supports thinking about politicians when appointing a court.”
“Why not do that? To me, the main feature of being a politician is that you didn’t take the stance that was alongside one or another political party at the time, but that you provided a reason in many different ways.
Tushnet’s ideal may not only be Charles Evans Hughes, the quasi-judge from 1910 to 1916 and the Supreme Court justice from 1930 to 1941, but also the Governor of New York, a Republican presidential candidate and a candidate for Secretary of State.
On the page, Tushnet imagines asking Hughes a question. “What constitutional theory do you use?” – and get a fascinating answer: “I try to interpret the constitution and make it a suitable tool for governance in America today.”
Tushnet says that rather than reaching out for judicial theory, modern judges and justice should say the same thing. His new book is part of the answer to the dismantling of originalism by Irwin Kemerinsky, dean of Berkeley Law School, California.
The originality of either form involves coming up with what the founder meant when he wrote the constitution and defending its application to modern questions. Tushnet “I think a significant portion of academic originality is not the subject of much criticism at Irwin’s level. It’s not perfect, but it’s an academic company, people solve difficulties, and there are controversies within the camp.
“The originality of the judicial is different because there are several components. One, I know that it is very selective now. For example, to introduce originality into Tiktok’s decisions, you have to do a huge amount of work. It’s not impossible, but basically not the opinion of a fundamentalist. So (justice) is selectively originalist, or my phrase is opportunistically originalist. They use it when the sources presented with the conclusion of support they want to reach anyway, and the hostile process in the Supreme Court is not in a very good way to find out what they say they are trying to find. And as a judicial corporation, originalism doesn’t do what it intends to do.”
tO Tushnet, the late Antonin Scalia, Arch Conservative and Originalist, is the “primary candidate on the list of great justice” of the past 50 years.
“But one bad contribution was his widely praised writing style. Now, his writing style changes over time. And I’ve read a huge number of opinions from the 1930s, so I know that there’s an improvement in readability since the 1930s. But (opinion) is that by including a zinger like scalia, the idea that it’s more readable, accessible and memorable, short phrases that can be cited and memorable seem to be just a mistake. But he’s so influential that people try to emulate him… Judge Kagan does it in a gentle way. I think my tendency is to say, “If you’re going to do it, do it like Justice Kagan, not the way Judge Scalia did.” ”
Tushnet agrees that some of Scalia’s Pugilistic Spirit appears to have passed it to Samuel Alito, the capitalized conservative author of Dobbs v Jackson, who removed the right to abortion while waving all the traces of humor.
Tushnet shows how Tushnet’s control of Alito’s Dobbs included clear mistakes. This is something that is largely in the role of drafting opinions, as Tushnet once did for Thurgood Marshall, the first Black American justice.
“The times were totally different,” Tushnet said. “The year I was there, the court decided 150 cases. Now they’re deciding who is under 50 years of age… The year I was there was the year when Roe v Wade was decided (in 1973, I established a right to abortion and it’s now lost). It was fundamentally resolved the previous year, so they just cleaned up things, but I knew these were the consequential decisions.”
The court will soon need to make more consequential decisions. In the meantime, the constitutional crisis and the story of the president’s rebellion against the courts is getting more and more intense.
“My feeling is that we are not in a crisis yet,” Tushnet said. “Like many administrations before that, the Trump administration has taken away offensive legal status. If they’re not proven, they’re tweeting about what they’re going to do. That happened before.
“My favorite example is that in the 1930s, Franklin Roosevelt had a major decision pending, but staff had prepared two press releases, one saying, “The court actually supported our position.” Now they didn’t need to issue that press release because the court went with the administration. But as you know, it’s not historically uncommon to tweet about resistance. The resistance is very dramatic, but we’re not there yet. ”
