Supreme Betrayal: How the Supreme Court and Constitutional Law Have Failed America

Mark Tushnet, Louis Michael Seidman
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Sitting in their marble palace, dressed in their black robes, Supreme Court Justices would like us to believe that they are wise and disinterested oracles dispensing words of truth and justice. Nothing could be further from the truth. Every episode week, Mark Tushnet and Mike Seidman, two renown constitutional law scholars, lift the curtain and show us how the men and women there who sit on the High Court have been manipulating us.

  1. HACE 5 DÍAS

    Birthright Citizenship

    Why are the birthright citizenship cases both not such a big deal and a big deal? After going through the arguments for the Trump administration’s position in some detail (the arguments against it are so obvious that we don’t spend much time on them), we situate the cases in the administration’s larger policy and ideological agendas: from a policy point of view they aren’t that big a deal, but from an ideological one they might be.

    43 min

  2. 27 SEP

    A Conversation with Will Baude

    Our conversation with Will Baude covers his ideas about originalism as "our law" and the implications of his position for a constitution--ours, perhaps--that isn't normatively attractive overall.

    51 min

  3. 15 SEP

    Recap and Trump's Tariffs

    We pick up after our summer break with a recap of our arguments about constitutional theory. Then we discuss the pending Supreme Court decision about President Trump’s power to impose tariffs, getting into some weeds that most popular commentary avoids, including a lot of detail about the major questions doctrine.

    45 min

  4. 14 SEP

    Recap and Trump's Tariffs

    We pick up after our summer break with a recap of our arguments about constitutional theory. Then we discuss the pending Supreme Court decision about President Trump’s power to impose tariffs, getting into some weeds that most popular commentary avoids, including a lot of detail about the major questions doctrine.

    45 min

  5. 3 AGO

    Constitutional Criminal Procedure

    Today we apply our way of thinking about the Constitution—what we’ve been calling constitutional theory—to a topic that isn’t usually discussed in those terms even though it gets a lot of attention: constitutional criminal procedure, focusing on police practices like stop-and-frisk and on the Miranda warnings. As usual our questions are about the connection between judicial (and political and bureaucratic) regulation of police practices and the people’s ability to govern itself. And as usual we divide (a bit) over whether courts have made things better, whether they’ve actively made things worse by exacerbating the race-based inequalities produced by the politics of crime, and whether the courts might come up with better ways of regulating police conduct that would enhance self-government.

    59 min

  6. 21 JUL

    Current Events, Resistance, and Jury Nullification

    This current events episode uses ICE arrests of public officials and protestors as the vehicle for a discussion of jury nullification as a constitutional or political practice. We begin with the story of abolitionist interference with the renditions—a word in the news again—of fugitives from enslavement as authorized by the 1850 Fugitive Slave Act. We use jury nullification to explore the opposition between “law” and “non-law” in political practice. We also discuss more briefly some aspects of the First Amendment defenses Harvard University is mounting against the Trump administration’s attacks—and reflect even more briefly on the importance of preserving civil society’s institutions as proto-authoritarians seek to move their agenda forward.

    1 h

  7. 4 JUL

    The Anti-Oligarchy Constitution: A Conversation

    Joseph Fishkin and William Forbath join us to discuss their book The Anti-Oligarchy Constitution. We talk about what their book's title describes, why they think it matters to describe it as a "constitutional" position rather than a "mere" set of policy prescriptions, the importance of historical traditions in thinking about the political use of the word "constitutional," the advantages and disadvantages of using that word as an intensifier, and more (including a digression of the possibility of "secession" or a division of the United States into "blue" and "red" nations)."

    1 h y 5 min

  8. 27 JUN

    Mike's Version of Constitutional Theory (or Anti-Theory)

    Mike gets a chance to lay out his approach. We begin with a longish discussion of the Emancipation Proclamation: Was it merely a “bill of lading”/military measure (Mark) or an extraconstitutional action justified because it was right (Mike)—or both? Mike then develops his approach by distinguishing between simple justice and legal justice and argues that legal justice interferes with the accomplishment of simple justice by trying to shut down disagreements about simple justice requires with an authoritarian “Get over it!” His alternative is the development of norms of reciprocity, mutual respect, compromise, and more to guide the temporary resolution of such disagreements through ordinary politics. Mark snipes along the way, wondering whether those norms can be retrieved from today’s swamps of ordinary politics.

    1 h y 7 min
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Sitting in their marble palace, dressed in their black robes, Supreme Court Justices would like us to believe that they are wise and disinterested oracles dispensing words of truth and justice. Nothing could be further from the truth. Every episode week, Mark Tushnet and Mike Seidman, two renown constitutional law scholars, lift the curtain and show us how the men and women there who sit on the High Court have been manipulating us.

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