Unprecedential American Enterprise Institute

2020 has shown us that our world has a lot of room for improvement, to say the least. But there’s also a lot to be grateful for. We’ve inherited an extraordinary constitutional system that has withstood the turmoil of 2020. This system’s wise and prudent stewards – such as George Washington, Abraham Lincoln, and Frederick Douglass – demonstrated remarkable gratitude for the American project, even as they sought to reform it. They recognize the “unbought grace of life,” as Edmund Burke put it.
In today’s Thanksgiving episode, https://www.aei.org/profile/yuval-levin/ (Yuval Levin), director of AEI’s Social, Cultural, and Constitutional Studies department and editor of National Affairs, sits down with https://twitter.com/adamjwhitedc?ref_src=twsrc%5Egoogle%7Ctwcamp%5Eserp%7Ctwgr%5Eauthor (Adam )to discuss the role of gratitude in our political order, which was the subject of Yuval’s https://eppc.org/publications/yuval-levins-bradley-prize-remarks/ (2013 Bradley Prize remarks).

Since the days of John Marshall, justices have worn black robes to downplay their individuality. But in recent decades, Supreme Court justices have found themselves increasingly surrounded by a "celebrity culture" befitting politicians—or reality TV stars. If the exemplar of this trend was Justice Ruth Bader Ginsburg (or "RBG" to her fans), then its antithesis was Justice David Souter, who retired quietly from the Court in 2009.
Marquette University Law Professor https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3651361 (Chad Oldfather) describes this in a new paper: “https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3651361 (The Inconspicuous DHS: The Supreme Court, Celebrity Culture, and Justice David H. Souter).” He discussed it with https://twitter.com/adamjwhitedc?ref_src=twsrc%5Egoogle%7Ctwcamp%5Eserp%7Ctwgr%5Eauthor (Adam) in today's episode—an episode first scheduled before the sad news of Justice Ginsburg's passing.

It’s commonly noted that, in the wake of King George III’s manifold mishaps, America’s framers built a constitutional system designed to constrain the executive. After all, the Founders typically deemed Congress, not the Presidency, the most powerful branch thanks to the preeminence of legislative authority granted in the Constitution. So how is it that today’s executive branch – both the Presidency and the sprawling administrative state – commands such vast governing authority, overshadowing Congress?
University of Virginia Law Professor https://www.law.virginia.edu/faculty/profile/sp5mm/1200266 (Sai Prakash), author of https://www.hup.harvard.edu/catalog.php?isbn=9780674987982 (The Living Presidency: An Originalist Argument Against Its Ever-Expanding Powers), talks with https://twitter.com/adamjwhitedc?ref_src=twsrc%5Egoogle%7Ctwcamp%5Eserp%7Ctwgr%5Eauthor (Adam) about the debates and decisions of the Founding that paved the way for the expansive executive office we see today. From early on, America’s unwritten constitution – its mores, civic culture, accumulation of practices – laid the foundation for today’s muscular presidency. To “recage the executive lion,” Sai suggests sensible reforms based on an astute originalist reading of the Constitution.

Supreme Court reporters are tasked with the heavy responsibility of telling the Court’s story fairly and accurately. But this job is not as straightforward as it might seem. The Court decides complicated legal issues, and analysts must resist the temptation to treat the Court's work as simply political, or to suggest that the 5-4 rulings are the most important and representative ones.
https://slate.com/author/dahlia-lithwick (Dahlia Lithwick) has been writing on the Court and the law for two decades, primarily at Slate. In today's episode, she and Adam discuss the press's work of covering the Court in politically and cultural fractious times. They consider Chief Justice Roberts's sometimes surprising moves to minimize the Court's political footprint, and the ways in which justices’ authentic camaraderie creates an institutional culture of spirited but largely amiable disputes that distinguish the Court from the government's political branches. Often these themes are more complicated—and more interesting—than momentary partisan disputes.
*NOTE: This conversation was recorded shortly before the passing of Justice Ginsburg and the nomination of Judge Barrett to succeed her.

Technology has always played a role in global affairs, encouraging trade, cooperation, and competition among nations. Today’s tech giants, however, are not just influential bystanders in the international arena. They have become peers to global political powers, sometimes going toe-to-toe with state actors. Digital technology, software engineering, and big data companies often find themselves as the gatekeepers of crucial national security information and technology.
How can the U.S. government best cooperate with tech giants to achieve national security aims and stymie adversaries like China? What strategies have state actors like the U.S., China, and Europe employed to grapple with the rise of big tech? https://twitter.com/klonkitchen?ref_src=twsrc%5Egoogle%7Ctwcamp%5Eserp%7Ctwgr%5Eauthor (Klon Kitchen) joins Adam to consider these themes and discuss his recent essay, “https://nationalaffairs.com/the-new-superpowers-how-and-why-the-tech-industry-is-shaping-the-international-system (The New Superpowers: How and Why the Tech Industry is Shaping the International System)” featured in National Affairs’ special issue, “https://nationalaffairs.com/big-tech-big-government-challenges-regulating-internet-platforms (Big Tech, Big Government: The Challenges of Regulating Internet Platforms).” Klon is the Director for the Heritage Foundation’s Center for Technology Policy. His newsletter, the https://www9.heritage.org/Kitchen-Sync-Subscribe-Page.html (Kitchen Sync), offers regular updates technology and global affairs.

It is difficult to exaggerate Justice Antonin Scalia’s outsized impact on American constitutional law. Originalism and textualism, the interpretive methods he championed throughout his career, are key themes in today’s legal landscape thanks in large part to his elegant and witty defense of their merits.
In this episode of Unprecedential, two former Scalia clerks, Sixth Circuit Judge https://fedsoc.org/contributors/jeffrey-sutton (Jeffrey Sutton) and the Ethics and Public Policy Center’s president https://eppc.org/author/edward_whelan/ (Ed Whelan), join https://twitter.com/adamjwhitedc?ref_src=twsrc%5Egoogle%7Ctwcamp%5Eserp%7Ctwgr%5Eauthor (Adam) to talk about the recent compilation of Scalia’s writings they edited, https://www.penguinrandomhouse.com/books/602308/the-essential-scalia-by-antonin-scalia-edited-by-jeffrey-s-sutton-and-edward-whelan/ (The Essential Scalia: On the Constitution, the Courts, and the Rule of Law).
Judge Sutton and Ed note that equally significant to Justice Scalia’s legal acumen was his amiable character. They discuss with Adam their memories of his generous mentorship of them as clerks, and his affable spirit even to those with whom he dissented vehemently. Justice Scalia’s playful disposition leaps out of his writings, providing his ideas with clarity, vividness, and pleasure uncommon in the legal profession. His faithfulness to originalism, as Judge Sutton and Ed point out, brought him both critics and admirers. But such principled jurisprudence is a sparkling example to all of judging at its very finest.