I think that to understand American politics, it helps if you’ve seen Akira Kurosawa’s masterpiece, Yojimbo (1961).

In the film, a Ronin arrives in a town divided between two rival criminal organizations. The two gangs’ reciprocal hostilities are all that keep either of them from dominating the town. So the Ronin can’t just chop down one of the gangs, because the other would then have a free hand. So instead, the Ronin has to figure out how to get the two gangs to destroy themselves.

This is a familiar setup. Two malign powers constitute each other’s principal constraint. Isolated intervention against either one makes the situation worse by removing the check on the other. You see this same idea in Miller’s Crossing (1990), A Fistful of Dollars (1964), and Lucky Number Slevin (2006).

That’s also the emerging dynamic for reformers who encounter “The Accommodation” between the juristocracy and the imperial presidency. I’ve been kicking this idea around for a while. American political development in my lifetime, to a significant extent, has been driven by these two mutually reinforcing trends. Juristocracy is the mode of governing authority through which political questions are subsumed by law and courts. Presidentialism, as I talk about it, is the political process whereby presidents centralize authority in themselves and develop warrants on authority.

In my lifetime, these two contingent forces in American life have sustained one another. The unitary executive theory has been imposed on America by the juristocrats, who are presidentialists on a primal level. At the same time, presidential appointment strategies have furthered ideological judicial power grabs.

But you can really get it twisted with the accommodation. A lot of people reach for simple models. And in this case, folks like to suggest that the Roberts Court is just carrying the GOP’s water.

I get the impulse. A lot of the time, if you’re following the cases, that’s how it looks. But I would implore you to adopt a more nuanced model.

It’s better to see the juristocrats, the formal GOP, and the Orange Man himself as embodying different but overlapping political projects. Think of the tariffs case. The outcome there shouldn’t have been surprising. The juristocrats’ project is more straightforwardly neoliberal in its economic orientation. So they split off and provide a speed bump. But the press spin is just insane because they think it’s an either-or proposition. Either the juristocrats are carrying the GOP’s water or they are bastions of independent discernment. The reality is more complicated.

The key to the accommodation as a frame is that both sides of the coin have independent reservoirs of power (warrants on authority) that they can deploy and therefore make claims on one another. I don’t think I’m exactly saying anything controversial when I write that I don’t think the Orange Man is principally driven by rule-of-law values. He attacks and belittles judges who rule against him. But the Orange Man has never made a seismic move on SCOTUS. That’s because he has a reptilian understanding that the juristocrats’ project is valuable to him, that it will vindicate key parts of his agenda even if he has to take a few losses. The juristocrats can vindicate him in important cases and thereby impose some aesthetic commitment to the rule of law (really rule by SCOTUS).

The other reason the accommodation frame is important is because it makes any reform effort look a lot more like Yojimbo. If you really did SCOTUS “smashing” without rolling back the imperial presidency, you’d be setting the stage for tyranny. Imagine a would-be tyrant who feels unimpeded by the juristocracy. The thought in the Trump Era sends a shiver down my spine.

I’m not saying the juristocrats are the only game in town, far from it. But the juristocrats are a weird lot in that they have some commitment to what they call the rule of law even as they destroy the same concept. I’m about as down on the Roberts Court as anyone, but I don’t think you’ve got five votes for an autocratic coup.

Similarly, the tribune-like presidency is a check on the juristocrats’ claims to Judge Dred-like power. As the juristocrats have helped hammer home a vision of one man standing above the Nation as a vindicator of the American volk, they have necessarily limited their ability to seize all political questions for themselves. Indeed, my read of the situation is that the only thing the post-legitimacy court really fears is some final showdown with the presidency they themselves helped set in stone. If you crush the presidency and leave the juristocrats untouched, I think the priests and robes will suddenly consider themselves the untouchable gods of the Constitution.

What I’m saying is that any attempt to deal with only one half of the accommodation risks destabilizing American politics. Now, for me, that means you should go all the way. We need a mass movement for democracy that recenters We the People and not some hierarchical institution (or pair of institutions) that wants to lord over us.

And I am personally interested in exploring ways to go full Yojimbo. I think people should be asking themselves, how, precisely, do you get the juristocrats and the presidentialists to turn on one another? And on that question, I will have more to say in the coming months . . .

Sometimes I do not understand my fellow man. Maybe if I put this more plainly, it will sink in for someone, somewhere.

See back in the day, there was a nice, well-meaning chap named Barack Obama. Mr. Obama felt really bad for America consumers and tried to make it so they got screwed over less. So he built a new agency to protect those folks called the Consumer Financial Protection Bureau (“CFPB”).

In another time, the CFPB could be expected to sure up Mr. Obama’s legacy. He fought for and won a little engine of progress that made some folks better off. Presumably, the CFPB would outlive Mr. Obama himself and keep helping folks out.

But the CFPB today is a shadow of its former self. The Orange Man came along and saw to that. The Orange Man couldn’t abolish the CFPB outright. That would have required legislation. And nobody from the Orange Man’s team remembers what that is. They like big man smash, smash.

So, instead, the Orange Man worked to make that agency functionally inert. He seized control of the CFPB director’s office, ordered the agency to stop doing its job, starved it of resources, eliminated most of its workforce, and then used the surviving shell for a farcical vision of consumer protection.

What’s the lesson here folks?

Well, if you’re AOC, it’s apparently that we haven’t gone far enough into presidentialism.

I really cannot fathom why this is hard to grasp. If you accept a presidentialist system wherein the state is the embodiment of one person’s will, you cannot make durable progress.

If, as AOC suggests, the Democratic Party tries to wield the presidency the GOP has built, it will destroy the Republic. It’s a lot like when someone other than Sauron tried to use the One Ring. It might get you out of a pinch, but nobody on the side of the light could access its power.

Say AOC is elected president in 2028. She builds a bunch of new agencies that redefine America. It doesn’t matter. The next time the GOP comes to power, they get the unitary presidency. They remove her appointees, unilaterally slash agency budgets, and fuck with civil servants just for entertainment.

And that’s if you’re lucky. They can also take your precious little creations and repurpose them. Suddenly your life’s work is deployed against the safety and security of the American people.

I don’t know what it will take to make this sink in. Sometimes I wonder if we need another failed Democratic presidency before people wake the fuck up. The failures of the Biden presidency were so tied up with an aging man losing his mind that it is too easy to dismiss the harder structural lessons.

Maybe we really do need more failed presidencies. I just can’t help feeling like we haven’t hit rock bottom yet.

Over the weekend, Representative James Clyburn (D-SC) made waves by offering his support for court packing, specifically adding four new justices to bring the grand total to 13. That headline occluded some of Clyburn’s sharper commentary. Clyburn said that SCOTUS “has decided to reverse course and take this country back to those rulings of Justice Taney, that said, ‘No Black man has any right that white man must respect.’” Here, Clyburn was referencing Roger Taney’s notorious Dred Scott opinion in 1857.

I think Clyburn’s statement should rightly be seen as a major event in the Democratic Party’s evolution on SCOTUS. But I think the most important thing for Democrats to do is to keep their heads on straight. My philosophical predisposition towards remembering what game you’re playing requires me to offer a crystal clear narrative of what the Democratic Party’s objective might be.

Two Ways of Thinking About Juristocracy

I think you could offer an overly stylized distinction between two different ways that scholars think about juristocracy. The first camp is historicized and rooted in American political development. This camp sees juristocracy as an institutional development whereby courts have subsumed political questions over time. SCOTUS and the federal judiciary started off as weak institutions. Gradually, they became incredibly powerful through, among other things, strategies of judicial self-aggrandizement.

Okay, but then there’s a second camp that you can read as working through an analytical philosophy of what democracy requires. These folks may be less rooted in American history. They oppose juristocracy on principle because it is incompatible with democratic self-rule.

Why distinguish between these two camps? I think the first group’s grounding in American history makes them more likely to focus on the unique problems of American juristocracy in a way that could prove confusing. You see, most countries don’t have our problems. Across many corners of the world, apex courts are forces for egalitarian change, democracy, and something like the rule of law. (Not universally true, but more often than not.)

That’s not how SCOTUS operates. Our Supreme Court helped instigate the bloodbath of the Civil War by issuing the Dred Scott decision (the same decision invoked by Clyburn over the weekend). Dred Scott stood for white supremacy and denied the descendants of enslaved Africans the prospect of American citizenship. After the War, SCOTUS helped undermine Reconstruction. Years later, I (and others) would predict the outcome in Trump v. Anderson by simply acknowledging that SCOTUS bends over backwards to kill off Reconstruction Amendments.

SCOTUS continued its campaign against American democracy in the early twentieth century. In Myers, the Court birthed the unitary executive theory that is currently being deployed to remake the American state.

The only time that SCOTUS has robustly acted like a well-functioning apex court was in the middle of the twentieth century. This was the era defining fluke known as the Warren Court. Because of the “long” New Deal, the Court was remade by FDR’s Democratic Party. Briefly, the forces of center left legal liberalism held power on the Court. This sort of hostile takeover, it should be noted, was taken off the table by the 22nd Amendment.

But, regardless, the good times didn’t last long. In the 1971 Powell Memo, the more conservative elements of American life plotted to seize the juristocracy that the Warren Court helped instantiate with all the fiendish delight of a Skeletor meme. The Warren Court was replaced within a generation by a Court that returned to SCOTUS’s long-run trajectory—weaponized reactionary politics.

The first camp of historicized juristocracy critics are more likely to focus on American juristocracy and thereby avoid any philosophical rejection of juristocracy qua juristocracy. That’s a difference that could really matter in our political moment. But I want to argue that the difference is irrelevant for present purposes.

Court “Reform” vs. Court “Smashing”

“When I set out to lead humankind along my Golden Path, I promised them a lesson their bones would remember.” — Leto II, God Emperor Dune

A focus on court “reform” might lead people towards trying to overcome the problems highlighted by the historicized opponents of American juristocracy. Jeez, if SCOTUS is so pathological, we ought to reform it in order to get a well-functioning apex court.

That is theoretically possible, but it’s not in the cards anytime soon, perhaps in our lifetimes. Because SCOTUS’s pathologies are historically recurrent, we might infer that its problems flow from structural features of American government. Lifetime tenure, appointment and confirmation by politicians, a bare majoritarian voting requirement within the Court, and a bicameral legislature hemmed in by the proto Federalists and Antifederalists of 1787, all add up to create the perfect conditions for a minoritarian institution that can work to subvert American democracy.

Could you fix these problems? Well, yeah, theoretically, yes. You could have time-limited terms. You could provide for nonpartisan appointments. You could require SCOTUS to reach something closer to unanimity whenever it strikes down federal legislation. And you could strengthen Congress and habituate it to checking the Court.

The problem is that fixing any one of the Court’s problems would be a generational political project. And Article V of the Constitution keeps us from doing large-scale reforms in one go.

The bottom line is that you cannot durably fix this kind of long-run institutional pathology in the constitutional system as it is currently devised.

Court “reform” is a contradiction in the near term, likely across our lifetimes. There are real and largely easy reforms for the lower courts, as discussed in the forthcoming Harvard Law Review Forward. But SCOTUS is too pathological. Even if you remade it as a bastion of lefty virtue, the Warren Court teaches us that you can’t make that situation stick.

What’s my point? The Democratic Party is just either confused or is obfuscating if it talks about Court “reform.” The problems with SCOTUS cannot be remedied with small-beans ethics reform.

Now the long-term goal is plain. If you are on the left, if you believe in multi-racial democracy, then your long-term goal should be to build the social formations that would allow the country to abandon the Constitution wholesale. You can’t do that today because the country is too divided and the left is too weak. You’re probably not going to live to see the mountaintop. Your goal is to keep alive the struggle.

In the short term, Court “reform” is a waste of time. The point is something more like Court “smashing.” If you can’t keep SCOTUS from producing reactionary juristocrats, you have to fill those juristocrats with the fear of God. You need to make them weaker and leave them with a memory so sharp that they feel it in their bones.

This is why court packing is important. The critics of court packing argue that it will lead to the politicization and weakening of SCOTUS because the GOP, once in power, will themselves try to pack the Court to even the playing field.

Yeah . . . that’s the whole point. The strength of court packing, if you’re a Democrat or a leftist, is that it puts the GOP in an impossible bind. Either you eat a progressive SCOTUS or you further degrade the institution by forever smashing the allusion that it is anything other than a partisan football. And once you smash Humpty Dumpty, putting him back together again would be require a bipartisan, generational project.

To be clear, you need to do more. You need to take away their white temple and put the juristocrats back beneath the Capitol where they belong. These subterranean juristocrats should have their clerks taken away, their jurisdiction limited, and their lives made a living hell.

The point is pain. They need to understand that they exist in subservience to We the People and our elected representatives. Once cowed, you work to build the social formations most conducive to progressive change.

On Playing It Straight

I think it’s important to learn from FDR’s mistakes.

FDR’s mistake was that he had a compelling argument for Court reform that he refused to make. After the landslide of 1936, he could have played it straight and told the American people that an unelected Court was threatening the survival of the Republic. Congress, supreme guardian of that Republic, needed to break the impasse. That would have made Court packing the culmination of the New Deal revolution.

Instead, when FDR introduced the plan on February 5, 1937, he wrapped it in a sexless story about judicial administration. The judiciary suffered from congestion, elderly judges lacked the capacity to keep up with modern litigation, and a “constant infusion of new blood” was necessary. Everyone knew, however, why Roosevelt suddenly wanted as many as six additional Supreme Court Justices.

That mismatch between obvious purpose and asserted justification hurt him in several mutually reinforcing ways.

First, it squandered the extraordinary democratic mandate of 1936. Roosevelt had just won 523 electoral votes and Democrats possessed enormous congressional majorities. The natural argument was majoritarian: the people have chosen a government capable of addressing the Depression, and SCOTUS could not be permitted to constitutionalize laissez-faire political economy against democracy.

Indeed, when Roosevelt finally spoke candidly in his March 9 fireside chat, that was the case he made. He said that the people were “in the driver’s seat,” accused the Court of behaving as a “policy-making body” and “third house of the Congress,” and declared that the country had to “save the Constitution from the Court and the Court from itself.”

Second, the pretext shifted the burden of proof onto Roosevelt. Had he openly attacked juristocracy, opponents would have had to defend what the Court was actually doing: invalidating minimum-wage legislation, agricultural regulation, industrial policy, and other enactments of elected governments. Instead, Roosevelt invited a factual dispute over whether elderly judges were actually overworked. That was disastrous terrain. Chief Justice Hughes could answer the administration’s administrative claims with docket statistics and demonstrate that the Supreme Court was keeping up with its work. The attack therefore looked not merely controversial but contrived. Contemporary retellings emphasize that Hughes’s intervention demolished the workload justification.

I think it makes a tremendous bit of sense for Democrats to play it straight, unlike Roosevelt. We live in a populist moment in which people care more about authenticity than institutional abstractions. Everyone will know what this is really about. Democrats need politicians who can play it straight with the American people and tell them that they must rescue the Constitution from the Court.

Stay loose, roll with the punches

At one point when I was in the academic hirings market last year, I wandered into a screener interview that will sound familiar to many of my colleagues. It was a small event with only three faculty from the hiring school involved.

As soon as I entered the screener, the vibe was off. There were two junior scholars who were delightful but carried the stressed demeanor of someone who had been dealing with a difficult coworker. They had looks o like they had been beaten into submission and were now forcing smiles across their faces. And the third scholar on the screener was much more senior.

That third scholar did not want to be there. They were rude, short, and unpleasant even just to their colleagues.

As the interview went on, I knew immediately that the fix was in. This person hated my guts. They did not ask about my job talk, teaching, or anything that would usually be the focus of a screener interview.

Folks who follow my work know that I have the ambient sense that “expertise-based authority” has really taken a beating over the last several decades. I have never published legal scholarship on this topic. It’s just something I’ve mentioned in passing.

That really pissed this person off. We spent the whole time talking about this weird little theory. At one point, this person said something along the lines of: alright genius, if expertise-based authority is dead, what’s going to replace it? When I forthrightly demurred on predicting the next phases of era-defining institutional developments (LOL), this scholar just grew more pissed off.

That sort of thing is all too common in the academic hiring market. Sometimes you get on a call and the air is off. Sometimes it’s because the people on the hiring committee absolutely loathe one another. Other times, it’s because the fix is in, and somebody is going to use this opportunity to give you a setback. What you say in these situations doesn’t really matter. They came in with the goal of just wasting your time.

Now, was this scholar behaving responsibly? Christ, no, of course not. But this sort of thing is baked into academic hiring. The goal is just to stay loose, roll with the punches, and leave with your dignity. Don’t take it personally. Oftentimes, you will never hear from or see these folks again.

The same sort of phenomenon can happen in callbacks as well.

There are situations in which faculty members can have a disproportionate impact on hiring. Maybe they control an important spigot of cash. Maybe they have the ear of the legislature down the street. Or maybe a scholar is just such a pain that nobody will cross them.

If somebody with the ability and will decides that you are basically the anti-Christ on the academic hiring market, guess what, they can screw you. The nature of a callback interview is such that if you have a really dedicated antagonist, they can derail your whole visit. These are smart people. They know how to arrange spectacles to achieve their preferred results.

Now, again, is this really a responsible way to do academic hiring? Well, no, of course not. When this happened to me on a callback, I lost all respect for the scholar at issue. But that’s just the cards you can be dealt on the market.

Whether its screeners or callbacks, the performance is the same. Stay loose, roll with the punches, and get out of there with your dignity intact.

At the end of the day, you just have to have some faith that these folks you interact with are doing you a favor. It would have been bad for me to end up at those schools with faculties that convinced themselves through mental gymnastics that I was the worst thing to happen to law since Carl Schmitt.

Trust these folks to keep you away from schools you don’t have any business considering.

In Partisan Teasmanship and American Constitutionalism, Greg deconstructs the vaunted search for neutrality in American constitutional politics. Reading the paper you can just imagine Greg’s eyes rolling out of his skull whenever a critic of the Roberts Court complains that the juristocrats are engaged in some partisan teamsmanship.

Greg’s a proper APD scholar, so his take on constitutional politics comes with periodized claims on the past. As he argues, some of the best moments of transformational change in American history—e.g., Reconstruction and the New Deal—saw political actors both within and outside the judiciary trying to reconfigure our constitutional order in ways that might benefit the ruling coalition.

Taking the deconstruction of the law-politics distinction seriously, Greg deconstructs the quest for apolitical judging. Judges, on this view, are similarly situated to other types of officials within the state that we view as in some sense “political” and therefore not subject to the expectation against gamesmanship. But in reality, the judiciary was a central part of the regime change attempted or operationalized in both Reconstruction and the New Deal. Whenever you have a political coalition that attempts to do something like reconstruction politics, the judiciary is going to have a role to play. Reconstruction politicians will try to cement and instantiate their objectives through courts and law.

Overall, the piece gives you a lot of chew on as you think about how best to critique the Roberts Court. The real target of the piece is a legal liberal’s nostalgia for a judiciary that never existed.

I think lowbrow television offers a unique glimpse into our collective social consciousness. Reality tv offers something that fiction cannot provide, an unadulterated look at our fellow citizens. But the next best thing is lowbrow fictional television. Good cinema provides something mediated by overlapping artistic sensibilities (the writer, the director, and the actors). Good mid-to-high brow cinema interrogates and provides moral instruction. But lowbrow television is something else entirely. It’s more like a mirror.

Like any moment in recent American history, the television of my younger years had period-specific moral content. Recently, I’ve been thinking about a genre of television that I associated with the Obama Era. In that Era, there were a bunch of shows that followed a similar premise: the shows centered on a white guy who had some unique skill set that allowed him to go into a room and understand a person or a complicated series of events.

Exemplary shows include The Mentalist (2008–15), Lie to Me (2009–11), Sherlock (2010–17), and Elementary (2012–19).

I must stipulate that this kind of show has roots in the Bush Era. Maybe the most successful early innovator of the brilliant-white-man genre was House (2004–12), the show about a troubled doctor who was nonetheless a world-class diagnostician. House set some of the conventions of the genre. The titular character’s brilliance is cyclically set against the norms and expectations of the institution in which he has embedded himself, here a hospital. Dr. House’s actions are constantly at odds with the medical professionals around him. But he almost invariably pulls a rabbit out of the hat and saves lives.

That origin in the War on Terror makes some intuitive sense. That moment vivified the hunt for a truth present in dispersed clues. The danger that many felt after 9/11 was that ordinary institutions might fail to connect the dots. We needed an exceptional interpreter.

But I think there’s nonetheless a center of gravity in the Obama Era, when shows tried to capitalize on a lot of the same moves as House. Shows like Lie to Me and Sherlock either embed their brilliant white guys in proceduralized institutions or pair them with a foil who represents a kind of bureaucratized competence.

Call the weird morality of these shows neoliberal, meritocratic, or Obama-ish, whatever suits you. The point is that bureaucracy and settled institutions only frustrate our search for the truth.

The fantasy of these shows isn’t quite brilliance qua brilliance. The brilliant white guys of this genre can make meaning out of other humans. Lie to Me’s Cal Lightman is almost a human lie detector; he can extract the truth out of individuals’ involuntary “microexpressions.” The fantasy in this genre is something like a kind of insight that renders our complicated social world legible.

Importantly, the insight only travels in one direction. For the brilliant white guys, everyone they come across is deceitful, yet an open book. But the brilliant white guys remain opaque. They’re often antisocial and totally illegible to the characters they come across. So the shows play on a specific fantasy of the white-male observer who has something like omniscience but is tragically misunderstood. The asymmetric knowledge of this one-way legibility then itself becomes a license for the main characters’ actions.

To state the obvious: their whiteness and maleness help constitute the fantasy because they occupy the culturally unmarked position from which everybody else’s difference becomes readable information. Many Americans are used to thinking of the white male perspective as a sort of societal baseline from which others deviate.

Part of the fantasy is that the misunderstood protagonists are so gifted that they’re given license to break the rules. Dr. House is kind of an ass, and he violates all kinds of professional ethics, but he’s saving lives at the end of the day. Because of these brilliant white guys’ brilliance, their transgressions often (though not always) are vindicated by the basic plot beats of their shows.

Overall, this genre feels painfully dated. In my head, these shows represent a kind of optimistic preoccupation with human rationality. These shows flourished in an interregnum between post-9/11 security culture and the post-2016 crisis in epistemic authority.

By the Obama Era, the genre had developed an internal morality that was kind of an odd synthesis of anti-bureaucratic sentiments and technocracy. The shows express a distrust of institutions that is very proto-Trump. But instead of some magical leader of the American volk, you get gifted individuals who can rise above the institutional morass. The Obama Era embodied an aspiration for cosmopolitan meritocracy that I see in the DNA of these shows.

Of course, none of the most salient notes here began in my childhood. Sherlock Holmes is the ur-text. What’s striking is that television around 2010 repeatedly rediscovered the Holmes structure and transplanted it into medicine, psychology, police consulting, and behavioral science.

It’s all kind of subtly undemocratic. If the genre had a slogan, it would have been “everyone is lying to you.” The patient, the suspect, it doesn’t matter. Ordinary human communication is untrustworthy in the worlds these shows developed. Normal niceties between us and our neighbors are dispensed with by brilliant white guys who seem to understand that those niceties are just obfuscations.

So I think the brilliant white guy genre is an accidental glimpse into a morality play about authority that was specific to a narrow historical window.

I’m not sure that the genre works in the Trump Era. The Obama Era emphasis on the potential of human rationality has given way to weirder times in which truth has lost its sovereign force in the world. We’re more conditioned today to think of ourselves as being bandied about by historical forces that defy human agency, even, perhaps, our collective agency.

More to the point, I don’t think we have the same appetite for shows about brilliant white men who ignore the rules and claim some privileged access to reality. Trump tries to embody the charismatic authority of the outsider who breaks the rules and unmasks those who were in the wrong. But with Trump, there’s no third act redemption. It doesn’t seem to matter whether Trump was in any meaningful sense “right.”

At the end of the day, the brilliant white guy genre was subtly optimistic about the existence of some truth that human beings could find. Truth exerted a tangible force on the world. That commitment to objective reality seems kind of quaint today. The Trump Era has been defined by the flaccidity of the truth. We can discover the truth, and nothing really results from it.

When I think of the Trump Era, I think of Succession (2018–23). The show is dotted with incidents in which Logan Roy’s many sins become public knowledge. It doesn’t matter. Logan is going to survive each of these struggles because of his connections in the realm of politics and because his media empire makes its own reality. The character who seem to grok this dynamic is Matthew Macfadyen’s Tom Wambsgans. When tempted to turn on Logan, Tom declines because Logan always comes out ahead in the end. There are forces operating in the world that are greater than a truth waiting to be discovered. Knowledge does not liberate anyone in Succession.

You can still find echoes of the brilliant white guy genre, but the morality has been inverted. In High Potential, a single mother with a genius IQ is brought in to help the LAPD because of her brilliance. But the morality of the show is almost the opposite of The Mentalist or even Sherlock. The social position of the “knower” is now centered on a character who is underestimated in American society. The knower now becomes a more cutting critique of hierarchy itself. The whole premise of the show is that the person who you would have been most likely to overlook is really the person who could cut through failing institutions.

In the end, I find the brilliant white guy genre to be emblematic of a kind of arrogance I associate with the Obama Era. A cluster of low-brow shows imagined legitimate authority as grounded in superior access to some overlooked objective reality. The brilliant white guys at the center of these shows were entitled to disregard the rules because the plots showed that they knew better. The fantasy of these shows has become harder to maintain. Charismatic rule-breaking and privileged access to the truth have become more politically menacing in a world broken apart by charismatic outsiders.

Overall though, I think this level of insight is hard to find on the face of mid-to-high brow art from the same era. Lowbrow television, it seems to me, is uniquely capable of telling us something about the contingent trajectory of authority. The Obama Era connected a few different premises: institutions fail us, rules stymie us, and ordinary people are untrustworthy, but there is some objective truth out there that is accessible to extraordinary individuals.

The strange optimism of these shows was not their faith in genius. It was their faith that genius could become an acceptable source of authority in a complicated world. House could violate every rule because the plot would render judgment. The politics of the Trump era has made that fantasy harder to sustain. We still have the men who claim that only they can see the truth. What has disappeared is our confidence that the truth will ever give us an answer on whether he was right or wrong. The truth may never exert itself on those who would obscure it.

I have a lot of friends on the left and right flanks of the legal academy. I’m friendly with LPE folks and with conservatives of a few different varieties. In that latter category I have experienced a big generational divide in casual conversation.

A lot of the older conservatives I know carry a lot of weight. They remember times—here, I’m thinking of the 1990s and 2000s—when they were both blocked and gaslit. They remember times when conservatives were routinely denied tenure, advancement, or were dismissed out of hand by their colleagues. To add insult to injury, their colleagues told them, both in these periods and since, that it was kind of all in their heads.

But I’ve been around long enough to be pulled aside by grey-haired centrist law professors who will admit candidly to me, “Oh yeah, we really screwed X. The faculty didn’t like his politics, so they put the screws to ‘em.”

But then I run into conservative legal scholars who are my age or on the younger side of things. They’re sort of unencumbered. They came up at a time when law schools had really changed their tone. A lot of law schools are actively looking for conservative legal scholars because they sincerely believe in viewpoint diversity. My cynical side makes me think that a few law schools are doing this to maintain cover amid a larger attack on higher ed.

Whatever the reason, I have noticed a really disparate gap between how older and younger conservative legal scholars operate in the world because of the differences in their lived experiences.

I think it’s bad for the American legal academy that those older conservative law professors never really got some kind of closure outside of being able to see their younger ideological bedfellows now thriving.

But I think it’s weird that this story has never (to my knowledge) been put in conversation with a similar one over on the left flank. There was a well-documented effort to push the crits to the periphery in the 1980s and 1990s using similar veto points and gaslighting. Crit scholars were denied tenure because of their politics and were given trumped up rationales that very few people buy today.

If you put these stories together, something more specific emerges. There’s an important governing majority in American law schools that I personally might associate with centrist liberalism. At different points and junctures, the center lashes out to its left and to its right. It can exert tremendous pressure on both of its flanks because law schools have various veto points that can be turned into ideological pressure points.

I’m not saying that there’s some consistent governing cabal at the center of American legal education across forty years. I’m describing a reoccurring institutional phenomenon. Faculty members closest to the median of the profession’s prevailing standards possess a disproportionate power to police their ideological flanks, and they exercise that power at different moments.

The thing that I’ve kept thinking about lately is why there’s never been a fusion-style resistance to these sorts of tactics. It just seems kind of intuitive to me that it’s in the interests of both the left and right flanks to resist the sorts of politically inflected purges, sidelining, and gaslighting that cyclically comes to bite them both. And even though centrist liberals dominate American law schools, I don’t think the logic of the purges could be sustained if left and right were on the same page.

Part of the problem, I think, is narrative siloing. Older conservatives have a thick memory of when they were on the chopping block. But when I bring up what happened to the Crits, they don’t recognize the narrative beats. Moreover, in my experience, they tend to view who holds the keys to law school power in a more simplified model. They talk about law schools as if they were sort of owned by some monolithic leftism that reaches out to periodically whack them. They don’t really always perceive the cleavages, the infighting.

And when I bring up what happened to conservatives with lefty sorts of scholars, I get a lot of blank stares. They don’t really see themselves in the story of the right. Moreover, younger lefty scholars have a lot of bad feelings about the sudden shift towards hiring young conservatives. You hear them in hushed tones talking about “conservative affirmative action.” This all keeps lefty folks from developing some solidarity with their colleagues on the right.

For each side, their periodized repression proves something essential about the American legal academy. The campaigns against conservative scholars are taken as evidence that American law schools are inherently left-wing. Meanwhile, for actual lefties, their periodized treatment evidences their inevitable defeat whenever they generate viable legal movements or schools of thought. Both stores only see half the picture. So the victims of institutional gatekeeping involuntarily help reproduce the conditions for history to repeat itself.

That’s all very real, but I think maybe the bigger problem is the conjunctural nature of the campaigns. It just strikes me that the centrists are sort of predictable in their timing. They tend to systematically go after folks on the left when some lefty group has caught the wind and appears ascendant. These purges are often colored by distrust and resentment.

The actions against the right-wing scholars seem less personal. It’s about who’s in power. When conservatives are in power politically, law schools feel constrained. More than that, the hiring and advancement of conservatives can be camouflage. But those periods of political precarity are time-limited for many schools.

The sort of conjunctural timing keeps anyone from really connecting all the dots. Conservative and progressive scholars are just under the axe at different times. They may feel impunity while the other side is getting hammered.

The only thing that I can see that might help this dynamic is a sort of honest airing of both sides’ travails in some shared setting. A “truth and reconciliation” committee for the legal academy, if you will. That kind of format might help both sides connect the dots and build something like a shared interest in working towards solutions. For that to happen, everyone has to understand that what’s good for the goose is good for the gander. Neither side may ever completely become powerful enough to meaningfully protect the youngsters on their rosters. So it’s better to seek out solutions that are more durable for both sides.

(This is obviously a deliberate overstatement. I’m not talking about a tribunal of emeritus law professors.)

I’m writing about this because I think it’s genuinely bad for the academy if anyone goes through one of these little politically motivated purges. There is the intuitive objection that hiring, advancement, and tenure should be about the quality of work done in the knowledge-production game. Less intuitively, I think it’s just really bad for our souls. The only thing that connects a lot of old conservatives with many old lefties I know is that they carry the awesome weight of having seen their friend and colleagues—sometimes some of the most brilliant scholars of their generations—get screwed because of politics. That weight wears a person down. It can really curdle into something corrupting. And I really don’t ever want to replicate that dynamic in myself or another.

I’m not saying that the left and right flanks of the American legal academy have to like one another. I just think it’s kind of intuitive that both sides’ long-run interests are best protected by rules that instantiate and protect institutional pluralism. But to get there, you have to synthesize two intergenerational memories that have been kept separate.

This is going to be a bit of a hot take. When folks at the LPE blog put out a list of cinema watches for the summer, one of their picks was the classic 1966 revolution film, The Battle of Algiers (“TBA”). The blog’s recommendation reads as follows:

Depicting the urban guerrilla campaign waged by Algerian nationalists against French occupation in claustrophobic, realist detail, Gillo Pontecorvo’s film demonstrates how legal regimes, policing, and violence intertwine with labor and urban space to preserve the colonial and postcolonial economic order.

I can definitely understand why TBA would be on the list. But the more I thought about it, the more that I think it’s kind of a complicated and nuanced pick. Complicated and nuanced in the sense of how the film has aged.1 And my thoughts are vexed in ways that I suspect will make some lefty cinephile want to put my head on a pike, but here we go.

TBA focuses on the Algerian Revolution (1954-1962), which was spearheaded by the Algerian National Liberation Front (“FLN”). I’m not an expert on French history, but my understanding is that Algeria had been colonized by France in the nineteenth century. The background that precedes the film is a colonial project that is incredibly iniquitous (duh). Over the course of this project, a million Europeans colonized Algeria. They formed a class—I believe they were called the pieds-noirs—that became economically prosperous standing on the backs of native Algerians.2

Importantly, Algeria was treated somewhat differently from France’s other colonial projects. The French formally designated Algeria an annexed part of France all the way back in 1848. But the French decision to incorporate Algeria and divide it into governing French departments did little to ensure the equality of Algerians. The law and existing institutions all privileged the pieds-noirs. As an expert on French Algeria put it:

French jurisdiction in Algeria not only resulted in inequities in the regime of rights but . . . it also ensured that access to land and labor would remain asymmetrical between the European minority and Muslim Algerian majority.

This has to do with the kind of colonial project at issue. This wasn’t like the English colonial project in North America, which turned on the attempted murder of entire indigenous societies. In Algeria, there was a committed attempt to build a different kind of settler society where a ruling European class depended on the still numerous indigenous workforce.3 The French formally treated the Algerians as French citizens, but it was more complicated on the ground. The Algerians were regarded as “indigènes, a category that had no legal definition or identity beyond what it was not: French national with full rights. And although indigènes could not benefit from French laws, they were nevertheless subject to French rules and governance if charged with crimes against Europeans.” The resulting regime was a struggle between facially egalitarian ends and the need for the French to maintain a rigid social hierarchy that could depend on Algerian labor at the bottom. A 1946 law dealing with naturalization held out the promise of integrating the native Algerian population into French society. But the same post-war regime gave the pieds-noirs an unjustifiably large share of formal political power.

So in the background, there’s a dance between formal equality and de facto inequities (largely though not entirely structured by law) that is kind of LPE fodder. But then you have to focus on the film itself.

TBA starts out in 1957, as a FLN soldier has been compelled through torture to give up the hideout for his compatriots. The French Army rolls in and surrounds that hideout as the film does a flashback to 1954. Starting afresh in 1954, the film has a crescendo that’s aided by its all-time-great score. Slowly, FLN agents and soldiers organize into resistance against French rule. The authorities in the colonial metropole eventually react, sending in some intimidating paratroopers.4

One thing I really like about TBA is that the resulting clashes between the French and the FLN give us a struggle between two rival systems of administration. The film references a “colonial administration” that is really a byword for the complex institutional arrangements that maintain the colonial project in Algeria. You cannot watch this film without concluding quite quickly that the colonial administration depends entirely on the backing of the metropole. And once the paratroopers come into frame, we’re given the bureaucratic muscle of the military as a character unto itself. But taken together, French rule is not sustained by force alone. The colonial project is built on segregated urban spaces, checkpoints, economic and labor inequalities, and, critically, law!

Then there’s the FLN. As the film progresses, we’re given a view of an increasingly complex and organized institution seeking liberation. The FLN is portrayed as an institution being born across the film’s run time. Initially, the FLN’s actions look like resistance as spectacle. But spectacle alone isn’t going to get the job done. The FLN needs to construct a counter-order to what’s on offer from the colonial administration and the metropole. In parts, the FLN has to start acting like it holds sovereignty. It makes demands on the Algerian people as though it were already a governing entity.5

The film gives law a starring role. In particular, the conflict is shaped by emergency provisions that granted colonial authorities and the military sweeping powers to put down the FLN.

The film reminds me of the LPE emphasis on countervailing power. I don’t think that idea is all that inaccessible. For LPE folks, law constitutes markets and institutions that concentrate power in particular groups or actors. You can’t really deal with the resulting inequalities through formal equality. Instead, you need sites of countervailing power that durably push back on inequity. The idea is premised on a vision of sites of countervailing power as little engines for solidarity between different kinds of folks—the poor, the working class, people of color. And if you’re an LPE person of an optimistic bent, you might think that because law constitutes the tools of inequality, law can also generate and sustain sites of countervailing power.

Is this film a triumph of important artistic merit? Well yeah, duh. Does it constitute an incredibly influential entry in the broader evolution of cinema? Again, duh.

But I’m kind of ambivalent on the film as a part of an LPE cinema canon.

On one hand, the film is at its best when it explores the constitutive bases of colonial rule. Colonial domination isn’t just about European force. It’s a project that’s constituted and sustained by law and economic realities. That’s hella LPE.

But the film hasn’t aged well in a few other respects. The LPE notion of countervailing power finds an example in TBA’s revolutionary FLN. But the FLN as portrayed is hyper-fixated on obtaining sovereignty through the deployment of violence. So from a modern lens, the film is kind of talking out of both sides of its mouth. First, the film tells us that the realities of colonialism are complicated and partially based in the realms of law and economics. But then it focuses on a group that is soaked in blood and righteous fury. We’re not given a vision of the FLN with a plan for the post-colonial political economy of Algeria.

To be clear, I think the FLN does things that would fit the bill for countervailing power. The FLN claims regulatory authority over the Casbah. It proceeds early in the film to start regulating alcohol, drugs, gambling, and prostitution. There are scenes that I think suggest that the FLN is conducting marriages outside the official colonial regime. The FLN orders a general strike that puts pressure on the French. And it provides aid and shelter to striking Algerians.

That ain’t nothing. This representation of the FLN on the screen isn’t just some kind of terrorist cell. It’s organizing Algerians and sustaining the resistance to a longstanding and morally bankrupt colonial project.

But it’s not like the strike is a tool in the construction of a worker-based economy. The strike helps the FLN lay claim to legitimacy. It’s an organization that wants to claim the mantel of sovereignty. But an LPE audience should know, sovereignty isn’t the whole ballgame. Law is architecture. Having show us the political economy of colonialism, the viewer today might ask what the FLN is going to do with the house the French built.

But in some senses, I still think TBA is a great LPE film because its weaknesses point us to where LPE needs to go.

I’m going to once again reiterate that I’m not an expert on Algerian or French history. What I’m about to say does not reflect any kind of expertise. I may be wrong in all the most important places.

My understanding is that the Algerian Revolution fundamentally rocked both Algeria and France. Independence led to economic stagnation as Europeans returned to Europe. The new Algerian state inherited the afterimage of the colonial political economy plus the destruction reaved during the liberation struggle. After political fracturing, the FLN emerged at the head of a one-party state that suppressed dissent and political pluralism. A bloodless coup in 1965 led to the abolition of Algeria's parliament and its post-war constitution. There were bona fide gains through industrial and socialistic policies. But the gains were unequal.

The Algerian story gives us the paradox of colonial revolution. The system of settler-colonial inequality is replaced by a different sort of order that had an unreliable commitment to democracy and which concentrated power in the military and a new sort of ruling class. Slowly, the government nationalized sectors that had been the domain of the colonialists. A critic would say that this led to the transfer of an economy built for colonial ends. It did not work to fundamentally undo the effects of colonial domination. The house—to continue our metaphor of law as architecture—might have merely changed hands.

The French side of the story has a lot of twists and turns. (Christ, that’s an understatement.) The French authorities initially downplayed the Revolution. The metropole’s reliance on emergency authorities made this pretense harder and harder to sustain. The hard fighting around the titular “Battle of Algiers” just ratcheted up the internal political dilemma amongst the colonialists and the authorities in the metropole. The military became increasingly frustrated with civilian authorities. In 1958, European settlers (who are at this point totally freaking out) and some military folks seize government buildings and stage a sort of uprising against the metropole. The prospect of a complete breakdown between the French and both the military and the pieds-noirs leads to the rise of a notoriously complicated chap named Charles De Gaulle, who inaugurates the rise of a Fifth Republic in France. Even though De Gaulle’s rise is greased by the hope that he will avert Algerian independence, he eventually concludes that independence is inevitable.

For the French, the Algerian Revolution pitted an ostensibly liberal constitutional order against the contradiction of settler-colonialism. That contradiction helped doom the Fourth Republic. The result—not unlike in Algeria—was a centralization of power. Parliamentary supremacy gave way to a new presidentialist system molded around De Gaulle. There’s tremendous displacement and economic fallout for the pieds-noirs and the Algerians who aided the French. The Revolution severs the governing paradigms that structure Algerian labor in the French economy. That reliance doesn’t go away, but the Revolution recasts Algerians as foreign laborers. Movement within an empire is recast as migration between separate states. Algerian laborers who moved to the old metropole were governed by a special bilateral regime. Ultimately, many of the same dynamics from before the war were recreated under a new guise.

What does all this have to do with LPE?

I think it’s probably true that the writings on countervailing power have focused more on creation than durability and disciplining. I am not saying that’s universally true. If you read people like Samuel Bagg, Catherine Fisk, Miriam Seifter, and Sabeel Rahman, I think you’re going to get some ideas. I just mean that the allocation of attention is uneven.

I don’t think LPE folks talk enough about how it’s totally pointless to build sites of countervailing power unless they are built sustainably. These things are just as liable to be corrupted, subverted, or captured as any other institution. We need to spend more time on how to discipline sites of countervailing power after they’ve been foisted on the world.

Watching TBA helped me think through my own preoccupations. If you had to summarize some of my contributions to LPE, you might start with the idea that sites of countervailing power and and nonreformist reforms don’t really matter unless you build an institutional ecology that makes them stick. How do you do that? Well one answer, as I’ve written before, is to focus on what I’ve called reconstruction and constitutional politics. Take that or leave it. But you have to have some idea of how you keep your institutional creations on the straight and narrow.

All that said, I have one other aesthetic grievance with TBA. I’ve talked before about François Truffaut’s famous remark, “I don’t think I’ve really seen an antiwar film. Every film about war ends up being pro-war.” The rumor is that Truffaut had wanted to make a film set in Algeria at some point, but abandoned the project after coming to the conclusion that “to show something is to ennoble it.”

A problem with TBA that is perhaps unavoidable is that it has no real answer to Truffaut’s paradox. The violence of the film becomes a spectacle in itself. I think it’s hard not to watch the film and root for the Algerian resistance. This puts the audience in a hard spot when witnessing the FLN’s violent methods.

I’m not saying there can be no violence in an LPE film canon. I’m just saying we have to acknowledge that this film has limited capacity to make us critically engage with the spectacle of revolutionary violence, even revolutionary violence rooted in moral clarity.

Not that my advice should really move anyone, but if you’re going on the academic hiring market for law schools, I have thoughts.

I think candidates stress their job-talk papers in ways that are unproductive. Talented authors tend to understand the soft spots in their draft papers. If you’re like me, those soft spots are all you think about. They consume the liminal space between laying your head down and falling asleep. When you’re on the market, this can create a lot of stress and many inefficiencies. Your prep can become focused on obsessing over the imagined pushback you’re going to get on your article’s weaknesses.

This pathological approach to the market misunderstands the differences between a good paper and a good job-talk paper. It also underrates the performative aspects of being on the market.

Recently, I was asked to moot a candidate on this year’s hiring market. When I agreed to participate, someone sent me a really interesting and inventive job-talk paper. The author in question has really interesting things to say about a much-written-about doctrine. Separately, the author has some interesting moves that have nothing to do with doctrine, they’re more like something you’d see from a fancy law school. But then there’s this part of the paper where those two things meet up. And you know, it’s not perfect. The connective tissue can be a little hand-waivey and undercooked.

But this thing makes for a banger job talk. The paper’s weaknesses outside of the academic hiring market are what make it a good job-talk paper (at least, at most law schools). The doctrinal commentary is good enough to assuage people who want a workmanlike entry-level hire who can teach doctrine and plug away at doctrinal work. The fancy moves are good enough to elevate the author beyond ~just~ being that doctrinalist. The author is assuaging two completely different constituencies on the market.

What about the intersection? Well that’s a problem on the merits, but I don’t think it’s going to hurt the author on the academic-hiring market. For somebody to spot that problem, they have to be an academic in the relevant subject area. I happen to overlap a lot with the author/candidate in question, so I can see it. But it’s faint enough that it’s only going to be spotted by a few people on the market. To be clear, the paper kind of turns on that faint problem. But that’s an issue for another day.

What if the author runs into somebody who sees the problem? Well, this is where people have to understand the performance aspect. Job talks can be hella boring if you have an immaculate paper. What is there to say? But imperfections can drive a more lively back-and-forth. Moreover, when pressed, the author can do one of several moves that plays particularly well on the market. They can say, “well that is exactly where I want to go with my research agenda. That’s the soft spot in this article that demands further exploration.” And the author can have that exchange with great grace and enthusiasm, so that they come off as an interesting, well-mannered colleague.

Now, obviously if the paper sucks, you’re cooked. Kind of late in the game to sweat that though.

This is a tip offered from a “do what I say, not what I do” kind of place. All I thought about on the market was the imperfections in my job talk paper. That clouded my judgment and hurt my candidacy. Do better than I did!

If you’re going on the market, try not to sweat the imperfections. Those imperfections may, I reckon, help more than they hurt.

Recently, I had the worst luck with my health. I landed in the hospital more than once with a nasty infection. And, as per usual, I started going mad running up the walls with boredom. For a tonic, I turned to papers that folks have recommended. And eventually, I found a paper that utterly captivated me.

The paper in question was Dan Rohde’s and Nicolas Parra-Herrera’s Law as Architecture: Mapping Contingency and Autonomy in Twentieth-Century Legal Historiography.

How to describe this thing? Part of the paper is an ambitious (and expressly nonexhaustive) mapping of different historiographical approaches to contingency and the autonomous nature of law. The authors go through Classical Legal Thought, Law and Society, Marxism, the New Left, and the Crits. For offering a succinct intellectual history, the piece is an essential reading assignment in seminars on legal history. But that’s just the appetizer.

(Side note: the writing is sublime. There’s this riff on Jorge Luis Borges that immediately put a smile on my face.)

These authors are aiming higher. They want to go after one of the big questions in legal history: Does law independently cause things to happen, or does it mostly reflect changes produced elsewhere in politics, society, and the economy? That’s the autonomy vs. contingency argument that has animated over a century of legal-historical debate.

The authors’ alternative is to understand law as architecture. Law is not just a collection of commands, prohibitions, ideas, or forums for political conflict. It supplies the institutions through which people organize collective life: contracts, corporations, trusts, money, government bonds, courts, central banks, administrative bodies, and the state itself. These forms create the conditions for cooperation, competition, domination, and exploitation.

The idea of law as architecture has significant appeal for LPE folks (broadly construed). As I have mentioned before, LPE has a somewhat strained relationship with legal history and trained Ph.D. historians especially. I take this article as one of the best takes on what LPE can offer in the realm of legal history, how good LPE histories can approach the role of law in (~waives hands~) making things happen. And because of the historical work in the paper itself, the authors are putting LPE work into a broader tradition of American legal historical thought.

But here’s the Hardy Boys mystery: when I did a deep dive in the hospital, the reception to this article is somewhat muted. Not that many citations. Not much discussion. It’s only been assigned in a few LPE courses.

That’s a world-historic blunder. This paper is not just good, it’s great. I would suggest that anyone doing an LPE seminar back East assign this thing and give it pride of place on the syllabus. I say that as someone who recently worked on an LPE seminar syllabus and totally whiffed on this tremendous article.

I hope that by boosting this piece, we can have more conversations about LPE and legal history. I am also hoping more buzz can nudge these authors into writing a sequel. I selfishly am praying that gambit works out. At the very least, I am grateful to the authors for having written something that excited me during a rough spell.

Sometimes I talk about legal scholarship as a collection of moves. When you’re coming up, you learn the moves and apply them to the issues you care about (hopefully for the first time). Once you get good enough, you can spot them from a mile away. Scholarly craft is about mastering the moves. Eventually, you get good enough to where you can subvert them.

There’s a good example to be had in Chad Squitieri’s new piece on The Constitutionality of Inter-Branch Appointments. The American legal academy is splintered into different epistemic communities and networks. Within the amorphous category of legal history exists a noteworthy group of folks called originalists. That’s where Chad lives and makes his bread.

Chad’s new piece is about a reckoning within his epistemic community. There’re a few different ways that can play out. Sometimes it looks like the return in The Odyssey. There’s some divisive issue that’s splintering a household, and the scholar has to stage a major come to Jesus. That’s not really what Chad is up to here. Sometimes a gentler approach is warranted. All epistemic communities invariably rely on certain folk narratives that have gone largely uncontested. There, the problems isn’t a house divided. It’s more like the kids still believe the story about how their aging dog had to go live on a farm. The job here, then, is a finesse reintroduction to reality. You don’t have to beat people over the head. As soon as you expose the folk narrative, the whole thing kind of crumbles.

That’s basically what Chad did here. There’s a folk understanding of inter-branch appointments in public-meaning originalism circles that just doesn’t make a ton of sense. So Chad goes through a bunch of different pieces of evidence to show that the folk understanding can’t survive even the slightest scrutiny. Again, he’s not turning the article into a killing field. He’s restrained. And once he gets going, the ground under the position he is critiquing just crumbles.

That he does this well is a sign of maturation from a legal scholar who’s still on the younger end of things. He saw the right move and applied it. Well done.

I am just as enthralled with Christopher Nolan’s The Odyssey (2026) as everyone else. This film is one of the most successful adaptations I have ever witnessed. Half way through the film, I lost a crown while eating some popcorn, and immediately felt shooting pain in my mouth. I DID NOT CARE. There was nothing that could steal my attention from this epic.

This is the kind of movie that only comes around maybe once every five years. But in some corners, the film is being dismissed as a naive anti-war film produced for the Trump Era.

The Odyssey begins in the long shadow of the Trojan War. Odysseus, king of Ithaca, has spent ten years fighting at Troy and will spend nearly another ten trying to return to Penelope and their son, Telemachus. While Penelope holds off the suitors consuming her household and plotting against Telemachus, Odysseus loses his fleet through a succession of encounters with the Cyclops, Circe, the Sirens, Scylla and Charybdis, the dead, and finally Calypso, who keeps him on her island by feeding him lotus flowers that erase his memories.

In classic Nolan fashion, we’re given the events of the plot nonlinearly. Odysseus slowly recover fragments of his memory. This structure fundamentally changes the nature of the story. Instead of a series of fantastic obstacles, the events of the film are experienced like the disordered memories of a deeply traumatized soldier.

After escaping Calypso, Odysseus returns to Ithaca disguised as a beggar. He saves his son from an ambush before preparing to deal with Penelope’s obnoxious suitors. Not unlike The Return, Odysseus proves his identity by wielding his old bow and successfully stringing it.

Importantly, Nolan changes the poem’s restoration ending. Telemachus assumes the throne, while Odysseus departs Ithaca with Penelope to honor the comrades who died during his long war and return.

Nolan’s principal embellishment is to make the journey explicitly about the moral and psychological afterlife of war.

He highlights the wooden horse, a symbol only referenced in the Odyssey, and in the process expands it into the moral foundation for the film.

Nolan depicts the sack of Troy not as a glorious victory but as the extermination of a civilian population. Because Odysseus designed the horse, he sees himself as the author of the atrocity, this history-defining genocide.

Agamemnon becomes an almost faceless embodiment of organized slaughter, while the Athena who follows Odysseus is revealed to be an echo of the traumatic memory of a Trojan woman beheaded.

Nolan reduces the gods’ responsibility and softens many of Odysseus’s selfish mistakes, recasting his wandering as a struggle with guilt, amnesia, and the knowledge that “to burn the walls of Troy was to burn the world entire.” The result is an antiwar Odyssey in which Odysseus’s greatest achievement has also destroyed his capacity to come home unchanged.

Or, at least, that’s the prevailing reading of the film.

But that reading is complicated by the ending. Odysseus uses the same tools to kill Penelope’s suitors that he honed in Troy: deception, subterfuge, and slaughter.

If this is an anti-war film, why does our hero use his capacities of war making as the tools of revenge at the end of the film?

This returns us to the well-trodden critique that there is no such thing as an anti-war film.

That traditional critique is associated with François Truffaut, although his exact words are often sharpened in repetition. In a 1973 interview, he said: “I don’t think I’ve really seen an antiwar film. Every film about war ends up being pro-war.”

Truffaut’s insight is that the form and spectacle of cinema will always triumph over even the most well-intentioned anti-war filmmaker. War gives cinema everything it handles especially well: scale, motion, noise, danger, machinery, landscapes, bodies under pressure, and sudden reversals of fortune.

Cinema makes war sexy. That’s the idea.

That longstanding critique is closely related to the tension of The Odyssey. Its antiwar content is clear: Troy is an atrocity. But the film remains organized around his prowess for violence. He survives because he learned deception, command, endurance, and violence. The climax then allows him to deploy those capacities against men the audience has been taught to despise.

But this may be why the film is a masterpiece. Nolan, or the forces around him, may have solved Truffaut’s paradox.

Nolan leans into the tension. Odysseus leaves Ithaca in exile because he has committed another atrocity that, if he stays, could destabilize his kingdom.

Nolan partly escapes the contradiction by refusing the king his throne. In the altered ending, Telemachus rules Ithaca while Odysseus and Penelope leave for the West. Odysseus can recover the kingdom, but he may no longer be capable of inhabiting it.

Nolan’s Odyssey is antiwar not because Odysseus renounces the lessons of Troy, but because he cannot. When the war hero finally reaches home, the only way he knows how to restore it is to conquer it.

To say that the film could only work after Iraq, Afghanistan, and Gaza is not to say that an antiwar adaptation of Homer was previously unimaginable. But this film arrives at a conjuncture in which several generations have been prepared to recognize its central premise: victory does not end a war, restore innocence, or vindicate the stories that incited it.

Earlier adaptations could treat Odysseus’s cunning as an uncomplicated mark of greatness because audiences remained accustomed to separating the heroic warrior from the ruined world his heroism produced. (I do not, to be clear, think this is a good reading of the source material.)

Nolan assumes that separation has become impossible. His Odysseus returns from a celebrated victory carrying the knowledge that it was an atrocity, that his ingenuity made it possible, and that the habits required to destroy Troy will follow him into every community he enters afterward.

The hero’s problem is therefore not simply trauma. It is that the qualities for which civilization praises him: strategic brilliance, emotional compartmentalization, obedience to the mission, the capacity to treat other people with same brutality as the cyclops who ate Odysseus’s men. These are the same qualities that have made ordinary life inaccessible to him.

For the generations formed by Iraq and Afghanistan, that premise requires very little explanation. They watched wars initially presented as urgent, morally clear, and historically transformative become occupations measured in decades, civilian deaths, torture, displacement, and institutional deception.

They saw veterans returning to a society eager to honor their service without fully confronting what it had asked them to do.

Against that background, Odysseus no longer looks like a hero unfortunately delayed on his way home. He looks like the veteran of an endless war whose official conclusion has almost nothing to do with its actual end.

Troy persists in Odysseus’s body, his memories, his bloody actions. The massacre of the suitors becomes disturbing precisely because it is successful. Odysseus applies the lessons of a disastrous foreign war to a domestic crisis and discovers that violence remains the one language in which he remains fluent.

Gaza completes the conjuncture by forming a younger audience for whom the destruction of war has been encountered with immediacy and for whom official distinctions between precision and devastation, defense and punishment, military necessity and civilian suffering have become difficult to sustain.

The point is not that Iraq, Afghanistan, and Gaza are politically or morally interchangeable. It is that they have collectively weakened the heroic distance on which the traditional war story depends. Younger Americans have been markedly more critical of Israel’s conduct in Gaza than older cohorts, while young people increasingly encounter war through decentralized digital media rather than through governments and established news networks.

Nolan’s film therefore meets several audiences at once: older viewers who remember how Iraq and Afghanistan were sold, middle generations who watched those wars become permanent and purposeless, and younger viewers whose political consciousness has been shaped by images of civilians trapped beneath the rhetoric of necessity.

They are differently situated, but uniquely prepared to accept the same terrible proposition. The greatest danger is not that Odysseus will fail to return from Troy. It is that Troy will return with him and that everyone will call what follows a restoration.

With The Odyssey, Nolan is a man who has met the moment. And like the smashing atoms of Oppenheimer, he has produced something explosive that has changed cinema and overcome perhaps its most longstanding limitation.

This is a work touched by the gods.

In 1896, Francis Amas Walker was already one of the United States’ leading statisticians and political economists. The scion of a powerful Boston family, Walker was by then the President of MIT. His pioneering work on the US census earned him far-flung acclaim.

But in 1896, Walker published a controversial essay in The Atlantic. In a social-scientific register, he made the case for ending America’s longstanding traditions of relatively open immigration. Walker’s core claim was that more recent immigrants were fundamentally different than the waves of immigration earlier in the nineteenth century. The new immigrants, he argued, were peoples whom history had allegedly left unprepared for American economic and political life.

Walker argued that the new immigrants from Italy, Austria-Hungary, Russia, and southeastern Europe were “beaten men from beaten races.” Dealing categorically, he wrote that older immigrant groups came with centuries of cultivated habits favorable to self-government. These newer immigrant, Walker argued, were formed by centuries of subordination. Quote:

Centuries are against them, as centuries were on the side of those who formerly came to us.

Walker’s arguments were recalled in my mind by a recent controversy. In the unending saga that is Ilan Wurman, we have a new episode. Some scholars have criticized Wurman in recent days because of an internet clip in which he explains his policy concerns around Birthright citizenship. Responding to his critics, Wurman posted an outline of his views which I will happily admit accurately reflects the contents of the internet clip. But whereas Wurman sees his outline as vindication, I see something like Walker’s old writings. See the screenshot below.

To do some throat-clearing, this is in my opinion a loathsome and implicitly bigoted set of assumptions. These are also irresponsible claims on the past. The folks Francis Walker feared have assimilated quite neatly. We might also ask who has a better grip on the notes and themes of the Anglo-American constitutional project. Is it the Venezuelan migrant who suffers unthinkable dangers to find democracy and the rule of law, to find refuge from arbitrary personal rule and corruption? Or is it a law professor who complains endlessly and tediously about the Ivory Tower Cabal whose approval he sought so earnestly?

Beyond the loathsomeness of it all, there is some nuance that is worth unpacking. I saw a law professor online compare Wurman’s comments to blood-and-soil nationalism. While I certainly understand the comparison, I don’t think it’s precisely correct. Wurman’s comments, as well as Francis Walker’s writings, reflect recurring instincts that I would alternatively call either civilizational nationalism or constitutionalized jingoism. I like the term “constitutionalized jingoism” because this mode of argument often turns on the Anglo-American constitutional project.

Some may ask, well what’s the point of drawing distinctions once you’re down in the gutter? I want to reveal the differences to point out the dishonesty of constitutionalized jingoism. Blood-and-soil nationalists, despite being vile, don’t really hide the ball. There’s something cruel at the heart of constitutionalized jingoism that I want to explore.

The Habits of Liberal Democracy

Constitutionalized jingoism begins from an insight that’s not necessarily wrong. Constitutional government depends on more than constitutional text. Liberal democracy requires habits, practices, and forms of restraint that cannot be reduced to a written document. (This is, I should add, a point of some importance for a guy with my constitutional politics.) People must tolerate disagreement, allow for the peaceful transfer of power, and recognize that winning an election does not confer ownership of the state. (Unitary Executive be damned!) Institutions and practices depend on dispositions.

Then comes the bigoted move that sets things in motion. Those dispositions on which democracy depend are assigned to a particular civilization. Constitutional democracy becomes the product not of institutions operating in the present, but of a people developing across centuries. The law is the surface. Beneath it lies culture. Beneath culture lies history. And only some people have lived the right history.

The move divides people into those who inherited the ingredients of liberal democracy and those who were made deficient by history. It creates a rarified category of immigrants who come from the right places. And below that rarified atmosphere sits a people who arrive with the consequences of autocracy, hierarchy, religious strife, poverty, or political disorder. They may learn the constitutional rules or mouth the creed. But they do not necessarily possess the deeper habits that make you one of the select.

This is where Walker becomes useful in illuminating Wurman’s words.

For Walker, the new immigrant was damned before he got on the boat. He argued that the new immigrants lacked the “ideas and aptitudes” necessary for self-government. Their defect existed before they boarded the ship. It arose from the political histories of the societies from which they came. The problem was civilizational development.

The select who flew up in the rarified atmosphere of some imagined and coherent Western tradition of liberal democracy were prepared. The newer immigrants just weren’t. This wasn’t the sort of thing education could fix (at least not on a timescale that mattered).

Walker’s essay became part of an organized campaign for immigration restriction at the end of the nineteenth century. Restrictionists warned that “undesirable immigrants” threatened the American way of life. Constitutionalized jingoism let them avoid any explicit dependence on racial animus.

The bottom line? The people arriving now were not like the people who had arrived before.

Centuries were against them.

Assimilation “today”

Wurman’s argument immediately reminded me of Walker’s moves.

The habits required for liberal constitutionalism took one thousand years to develop.

Immigrants must assimilate “today.”

Did you see the trick? If the habits take centuries, then immigrants can not acquire them on any reasonable timeline. Neither, presumably, can their grandchildren. Wurman’s claim on the past makes a joke out of the hollow rhetoric of assimilation.

In that earlier era of Walker and his contemporaries, assimilation was an escape hatch for the person making the argument. But there was something crude in the word. It never seemed to do work on behalf of the noncitizen who dreamed of America and all it had to offer. That noncitizen couldn’t satisfy a man like Walker because from Walker’s perspective, the noncitizen permanently lacked core qualities like participation and an appreciation for democratic self rule.

There’s another game being played with the word “culture.” People like Walker could defend themselves against the charges of racism or ethnonationalism by talking about culture as something that you pick up and learn. But whenever they need to put the screws to immigration, people like Walker recast culture as an inheritance. Afterall, habits of liberal democracy take centuries to develop. This word game is the bigot’s way of having his cake and eating it too.

But I don’t think what I’m describing is blood-and-soil nationalism. It’s not formally about how grandpappy fought in the Civil War (it is impolite to ask which side) and is buried out back. Blood-and-soil nationalism is a blunt instrument. When J.D. Vance gets going on this note, you have zero doubts about what he is up to. Constitutional jingoism is a different kind of modality. Honestly, it’s sort of cowardly and always cruel.

The Moving Line

The jarring thing here is the historical illiteracy. Walker was writing about Italians, Hungarians, and other folks from southern and eastern Europe. Today, we know these same peoples integrated into American society just fine. These people who had allegedly failed the historical test for American democracy did it anyway. People today would think you were nuts if you questioned whether Italian-Americans had assimilated into American culture. So why would a legal historian repeat a failed jingoism?

Well, the Wurman’s of it all are kind of backed into this historically reoccurring modality. The line they draw between the old immigrant and the new works in perpetuity. Those Italians and Hungarians? They were the good guys all along, the salt of the Earth. Suddenly the grandchildren of those folks Walker was kvetching about feel a distance between themselves and the newbies. And the process starts over. The older arrivals were immigration done right. The newer ones are the sign that the system has blow past all natural limits. What a magic trick.

The boundary moves because the argument is not really about identifying an objective quantum of assimilation. It is about preserving the authority of people who are here now to decide that the new folks have not earned their place.

Centuries always seem to favor the people who are already here. And we allow ourselves to forget so much.

The Noncitizen’s Triple Bind

The noncitizen is first told that political membership must be earned through assimilation. But performing the acts that define membership in a political community are what helps make virtuous citizens. When people take their time to participate in democracy, they form attachments to the world around them. It helps when these people feel secure, or at least secure enough to make long-term investments in their communities. You don’t have to read Bowling Alone to know that we create civic relationships through schools, workplaces, unions, churches, neighborhoods, and through other public institutions. And when we let folks exercise political rights, we help them commit to our political institutions. Noncitizens learn the folkways of American democracy by traversing them.

The first bind of constitutionalized jingoism flips all this on its head. It demands assimilation prior to inclusion. Noncitizens must demonstrate the habits of American democracy before being permitted to become a practice them. Noncitizens can’t vote in federal elections. They often possess more limited claims on public spaces. And their continued presence in this place is at the sufferance of a people who periodically deny their capacity for democratic self-rule. When noncitizens become marginalized in these circumstances, their supposed failure to assimilate is used as evidence to justify the original thesis.

The second bind is that these are not serious, falsifiable claims. An individual can’t answer for a civilization accusation. The noncitizens we know and see with our own eyes must just be the exceptions to the rule. Real, flesh-and-blood noncitizens can do nothing to disprove a claim about what happens when “millions” of people (people in Walker’s time would talk about Mongol “hordes”) are “imported.” Individuals disappear into a categorical charge.

This is one reason the word import matters. It strips migrants of their agency. Imports do not make choices, form attachments, change their minds, or contribute to institutions. They arrive as a mass, perhaps in a crate. Once the immigrant has been converted into demographic material, nothing the individual does can defeat the categorical charge. Even stratospheric success is anecdotal.

Third, and sorry for repeating myself here, the noncitizen is given the impossible task of assimilating with haste even while the jingoist proclaims out of the other side of his mouth that assimilation requires habits built by centuries.

I’ve used the word cruel in this essay a few times. There are levels to that cruelty. For example, time works differently for different people. Centuries were made available for the select. That they persisted with slavery and then racial caste required only patience. But the new immigrant must be the ideal of the Anglo-American project immediately.

Blood and Soil, or Something Else?

So was the law prawf right to call this blood-and-soil nationalism?

I think blood-and-soil nationalism is about an authentic bond between blood, DNA, and a specific land. That’s not quite constitutionalized jingoism, which is about the preservation of inherited cultural characteristics. But even I have to admit that the line here is pretty hazy. Once you see the cruelty and the binds of constitutionalized jingoism, it may work quite similarly in practice to more overt bigotries.

But I still think it’s worth understanding the difference. Developing an ability to spot the different modalities of American bigotry strengthen us. That muscle is closely related to important habits that Walker never held quite so firm. Namely, a commitment to multi-racial democracy and a rejection of artificial hierarchy.

And don’t fall for the moves. It doesn’t matter that they start with “civilization” talk. That’s a move that works to occlude the real-world implications. Guys like Walker, increasingly common today, will insist that they don’t hate outsiders, they just are worried about American democracy. Hell, he even believes in assimilation!

You don’t have to buy it. History can immunize us from a modality that was lazy and tired long before Wurman was ever born.

Constitutional Habits Are Things We Do

There is a better way to take seriously the cultural foundations of constitutional government.

Constitutional habits aren’t deposited in people’s character over centuries. They are practices produced, reinforced, weakened, or destroyed by institutions. Isn’t that part of the game? Constitutionalized jingoism distracts form presidents who incite coups and deny the results of democratic elections. It takes your eye off the senator who did nothing but inject cynicism and hatred into the bloodstream of America. I do not try to provide easy explanations for complex societal phenomena. (That’s what the jingoist is for.) But I have my doubts over whether the United State’s falling democratic ratings are the result of “imported” noncitizens from failed civilizations. Constitutionalized jingoism focuses our attention on the new immigrant just long enough to avoid seeing the people who are dismantling the project from the inside.

The lesson is not that assimilation never matters. It is that assimilation can’t be a test with an immediate deadline. If you don’t trust the project to win over the noncitizen, you never had that much faith in the project to begin with.

“Centuries are against them” is an elegant sentence that transforms our view of millions of people into the judgment of history. Exclusion isn’t something we are doing, it is something time decided for us.

But centuries do not vote, naturalize, exclude, deport, or confer citizenship.

People do.

Epilogue

Well, Wurman did not take this post very well. See below.

The most remarkable thing about this response is that he doesn’t seem to claim that I’ve gotten his views wrong. The “proposition” I discuss in this Essay is, it seems, absolutely his. The only thing he disputes is whether that proposition is in fact bigoted. And on that, I pretty much have to leave it to the capacities of my fellow man. I think that if you are capable of a historicized perspective on American history, you will understand that Wurman’s words are descended straight from the mouths of people who lived in the gutter. Constitutionalized jingoism was tired long before Wurman was ever born. I rest my case.

But Jesus, look at this response.

For starters, Wurman jabs at me by calling me a “newly minted” law professor. I don’t know about you, but if someone ever comes with receipts to explain how my words fit a historically recurrent mode of bigoted thinking, I hope I have a better defense than, the balls on this kid!

Second, Wurman appeals to history. Many people in the past, we are told, shared his beliefs. Who cares? We used to burn witches. We’ve come a long way.

But then, set off by m-dashes, Wurman basically confirms my characterizations of his beliefs. He writes, “not all cultures have the same capacity for constitutional self-government.” I would really like him to tell us which cultures he is talking about. But yeah, this is just a bigoted way of casting moral deficiencies on entire swaths of people. It’s also just a really lazy way of talking about the present and the past. As Jamelle Bouie wrote later,

“an obvious truth” this guy is high on his own supply. It is not actually an “obvious truth” that some cultures lack the capacity for self-government. that is a proposition that you need to argue.

I didn’t write this essay to get Wurman in trouble. I was shocked that his words went down so easy on a public-facing platform. I thought that by unpacking them, I could wake people up to a historically recurrent mode of bigoted thinking.

I could have said more. I could have asked, gosh, shouldn’t this person’s recourse to a bigoted mode for making claims on the past throw his credibility into doubt when he writes legal history? Doesn’t this evidence patterns of thought and instincts that are totally inconsistent with sound historical thinking?

But Ilan blew up anyway. And in the process, he appeared to be all too content with the MAGA-led assault on higher education. I would go ahead and say that this is pretty consistent with the essay I wrote about his incompatibility with the knowledge-production game. We are not, it seems, playing the same game.

Finally, I’ll just note that this reply is classic Wurman. This guy has caught a lot of flack in recent years. His responses are predictable. He usually claims to be the victim of a liberal intellectual establishment that’s out to get him. Wurman also talks a lot of smack about the same “ivory tower” in which he has ensconced himself over many years of incremental decision making.

It’s the same move here. But note that it’s like he’s not even putting in any effort anymore. Wurman says that I attacked him for being a “bigot” and a “racist.” Did I ever say either thing? If you read my Essay, the word “racist” is never used in connection with Wurman. I do use the word “bigoted.” But a close reading (or really any reading at all) shows that I never called Wurman himself a bigot.

You see, I do not traffic in rhetorical strategies that deny people agency. I would not use the words “racist” or “bigot” because Wurman can just stop using bigoted words and rhetorical strategies. I do not claim to know what is in his heart or in his mind. All I can do is evaluate his words with the brain that I have, hopelessly addicted to historicized thinking as it may be.

I’m left really tired of engaging with this guy. I hope readers got something out of the analysis of constitutionalized jingoism. That’s really what I was after. History is not something that can solve our issues for us today. But historicized thinking can give us roadmaps for understanding the world around us. The moment we’re living in isn’t entirely new. There are echoes of the past. This Essay is just one example of my attempts at using historicized thinking to help my readers understand the connections between past and present, along with the dizzying politics that are happening all around us.

God willing, this will be the last chapter in the Wurman saga for Passing Political Time.

There is a moment near the end of Alice Schertle and Jill McElmurry’s Little Blue Truck that should be assigned to constitutional law scholars. For the uninitiated (for anyone without young children, the Little Blue Truck is a popular children’s story about a friendly blue truck, a dump truck that’s kind of a jerk, and a little toad. The Blue Truck is a delight. He’s always saying high to all the animals that live in his rustic part of town.

The big dump truck is not so nice. He starts the story barreling down the road, too proud to acknowledge anyone else. “I have big important things to do,” he honks! His confidence eventually leads to disaster. Racing ahead, the dump truck drives straight into a patch of deep mud and buries himself up to his axles. For all his size and strength, he cannot get himself out of that mud.

The little blue truck—God, I love this guy—stops to help. He positions himself behind stranded dump truck and strains to pull him free. But the mud is too deep. Instead of rescuing the dump truck, Blue becomes trapped alongside him. The problem has become too large for either truck to solve alone. So Blue does what the dump truck never would: he asks for help.

One by one, the friends Blue had greeted earlier in the story arrive. The cow, the horse, the pig, the sheep, the goat, the chickens, and the duck line up behind the two trucks and begin to push together. Unlike the Dump Truck, Blue has friends who will come to help him if he’s down on his luck.

Just as their combined effort stalls out, a tiny green toad hops over and adds one last shove. The trucks lurch free. In the logic of the story, the toad appears to deliver the decisive push. But, hopefully, every child understands that the toad could never have rescued the trucks alone. His contribution matters because it joins a much larger collective effort that had already assembled behind him.

In causal terms, of course, the toad is not doing very much. Remove the horse, cow, pig, goat, sheep, chickens, duck, and Little Blue Truck, and the toad can jump against that bumper all day. His push matters only because everyone else is already leaning in the same direction. He supplies the final, increment of force to a much larger team effort.

Law professors are, at the best of times, the toad.

The Toad’s-Eye View

Law professors tend to have a badly distorted understanding of our place in constitutional adjudication.

We write an article and, before you know it, someone turns it into a brief. A lawyer repeats the argument at oral argument. And six months later, a juristocrat puts something resembling it into an opinion. (Of course, by this point, the end result is like a picture, of a picture, of a picture.) Law professors sometimes think that because our little green foot landed just before the truck moved, we must have supplied the relevant momentum.

This is the toad’s-eye view of constitutional adjudication.

It confuses temporal proximity with causal power. It notices the argument that appears at the end of the process while ignoring the accumulated political force that made the argument usable. And it is especially seductive because constitutional opinions are written to obscure their own causes.

The opinion does not say: We reached this result because the alternative would have produced intolerable political consequences, threatened our institutional position, divided our coalition, or endangered a project to which we are deeply committed. Juristocrats try to give us doctrine or a neat claim on the past. That juristocratic dynamic gives the toad a seemingly important role.

The basic mistake is easiest to see in the constitutional disputes that everybody is watching. In a low-salience case, an ingenious brief, a newly recovered source, or the distinctive craftsmanship of a specialist may genuinely change the result. The juristocrats may not have arrived with firm preferences. The competing political coalitions may not care. The institutional stakes may be difficult to perceive. There is room for legal argument to do more direct work.

But salience is gravity. As the political stakes rise, the plausible range of outcomes is increasingly constructed outside the doctrinal materials themselves. Political movements, party coalitions, institutional commitments, public expectations, elite networks, elections, and the juristocrats’ own sense of their place in the governing order begin to bear down on the case.

These forces do not mechanically dictate the outcome. Nothing in constitutional politics is that clean. But they construct the zone in which the salient legal arguments operate.

The law professors arrived pretty late to the party. We usually arrive after the truck is already in the mud and the barnyard has chosen a side.

Anderson and the Illusion of Legal Causation

Trump v. Anderson was an almost perfect demonstration.

The movement to enforce Section 3 of the Fourteenth Amendment against Donald Trump rested on serious historical scholarship and an entirely plausible understanding of the constitutional text.

But as the controversy developed, the legal campaign increasingly presented the question as one requiring authoritative resolution by the Supreme Court. (People were saying “run, don’t walk, to the Supremes.”) The argument had been discovered. Some lawyers injected that argument into respectable briefing. The relevant primary sources had been arranged in impressive formation. Now the juristocrats would have to apply the Constitution.

Except that the likely outcome had little to do with whether the argument was impressive. Something else won the day.

The Court was being asked, in the middle of a presidential election, to affirm a decision removing the Republican Party’s dominant candidate from the ballot. The political and institutional pressures against that result were overwhelming. Whatever the historical materials said, the Court was almost certain to find a way out. And it did. Returning to the norm of what juristocrats are for in this country, they gutted a reconstruction provision. All nine juristocrats agreed that Colorado could not use Section 3 to exclude Trump from the presidential ballot.

The legal arguments still mattered because they supplied the available paths to the juristocrats’ preferred results. They made some exits more embarrassing than others. They affected how the decision was written and perhaps the breadth of what the Court was willing to say. But they did not drive the outcome of the case.

The barnyard was already pushing.

The dangerous illusion was that a sufficiently good historical argument could force the Court in the other direction. That belief required people to treat constitutional argument as an autonomous form of power. Put the right argument “on the wall,” and judges would somehow become trapped by its correctness.

But judges are not trapped by good arguments. That is one of the first lessons of American constitutional history. They accept, distinguish, redescribe, minimize, proceduralize, or simply ignore them. What counts as a compelling legal argument is itself shaped by politics, institutional practice, and professional conventions. The most important processes are difficult to even see.

Birthright Citizenship and the Helpful Toad

The recent birthright-citizenship battle offers the inverse example.

Pranjal Drall and Sam Moyn argued that the attack on birthright citizenship did not become constitutionally credible because someone finally discovered the best interpretation of the Citizenship Clause.

The revisionist position had existed for decades. What changed was the political infrastructure surrounding it: the movements, organizations, officeholders, and elite constituencies capable of converting a marginal argument into a live constitutional claim.

Their larger point was that legal credibility is politically produced, even though the final conflict is conducted through briefs, precedents, historical sources, and the ordinary language of constitutional law.

The Supreme Court has now rejected the administration’s attack. In Trump v. Barbara, rejected any narrowing of Birthright Citizenship under the Fourteenth Amendment. The opinion rested on English common law, Reconstruction history, Wong Kim Ark, and the traditional materials of historicized constitutional argument.

I suspect that many scholars will look at the opinion and see evidence that the historical work did its job.

Perhaps some of it did. Good scholarship may have helped the majority explain its conclusion, made the government’s preferred route more costly, or deprived the juristocrats of an easy rationale for accepting the revisionist position. That is real. You can’t ever deny that the toad pushed with all his heart.

But we should be very cautious about moving from “the Court used arguments resembling ours” to “our arguments caused the Court’s decision.” The consequences of abolishing birthright citizenship were enormous. The revisionist position threatened a longstanding settlement, created immediate practical chaos, and demanded that the Court attach itself to an extraordinarily aggressive political project. Those conditions existed independently of any particular brief.

The outcome emerged from the entire configuration. The legal materials were part of that configuration, but they were not the whole causal story. They may not even have been its largest part.

A judicial opinion necessarily turns the toad into the protagonist because the opinion can describe only a narrow portion of the forces acting upon the Court. It cannot reproduce the barnyard. It can show us the little green foot.

This Does Not Mean Scholarship Is Useless

Here is where the argument can go wrong.

To say that law professors rarely cause outcomes in high-salience constitutional cases is not to say that scholarship is useless. It is to distinguish several different activities that legal academics too often collapse into one another.

The first is what I keep calling (sorry) the knowledge-production game. Scholars recover sources, test claims, correct falsehoods, develop concepts, complicate received narratives, and produce better accounts of the world. That work is worth doing even when no judge will ever cite it. Its value does not depend on its conversion into governing power.

Indeed, detaching knowledge production from immediate litigation may improve it. The scholar who is not constantly asking what Roberts or Kavanaugh will accept is freer to ask what is true, what is missing, and what our inherited categories conceal. A discipline organized entirely around influencing the juristocrats will eventually adopt the juristocrats’ field of vision.

The second activity is the slow construction of political possibility. Scholarship can alter public memory (“collective memory,” as its called in many quarters). It can give movements a vocabulary. It can recover buried constitutional traditions, expose the contingency of present arrangements, or make previously unthinkable reforms seem obvious. Over time, this work may change the forces that construct constitutional outcomes.

That influence is indirect and difficult to measure. It may take decades. It may pass through students, journalists, organizers, legislators, administrators, and ordinary citizens before returning to constitutional law in a nearly unrecognizable form. It is less flattering than the story in which a justice reads our article over breakfast and changes her vote. It is also probably more important in the long run.

Then there is litigation itself. Sometimes a scholar really does possess a missing source or a specialized body of knowledge that the parties need. Sometimes filing a brief is worth doing. Sometimes the toad’s marginal push may be necessary.

But that is a judgment about where one can make a limited contribution. It should not become a fantasy about who is moving the truck.

The Costs of Toad Esteem Inflation

The illusion of direct influence does more than flatter law professors. It shapes some corners of the public law contingent within the American legal academy.

Once scholars imagine themselves as important participants in constitutional adjudication, scholarship begins to migrate toward the tastes and capacities of courts. Research questions are selected because they may matter to litigation. Historical complexity is reduced to administrable tests. Normative arguments are translated into whatever interpretive language the current juristocrats are willing to entertain. Intellectual ambition becomes indistinguishable from the hope of appearing in a footnote.

This is not simply an aesthetic problem. It reinforces juristocracy.

Modes of governing authority acquire power when people organize their activities around them. The more intellectual resources we direct toward judicial resolution, the more natural judicial resolution appears. The more often law professors tell the public that the great constitutional question must be decided by the Supreme Court, the more we help construct a world in which the Supreme Court possesses the exclusive authority to decide great constitutional questions.

Our briefs may lose while our professional practices strengthen the institution that defeated us.

That was part of the problem in Anderson. The legalistic campaign did not merely risk a bad decision. It helped push authority upward, away from the dispersed political institutions and popular processes that might have developed their own understandings of Section 3. When the Court predictably closed the door, the defeat was described as the authoritative meaning of the Constitution.

Remember What We Do

The point is not that law professors should withdraw from public life. It’s not that constitutional adjudication is always and everywhere reducible to partisan politics. Justices have personal preferences, professional commitments, methodological habits, and institutional interests that interact in complicated ways. Some cases are genuinely open. Some arguments are better than others. Doctrine can constrain. History can embarrass. Craft matters. And all of this works together in really difficult to see ways. Nuance is, alas, unavoidable.

But the relationship between salience and political construction should discipline our causal claims. The more a case implicates the central projects of political movements, the control of national institutions, or the basic distribution of social power, the less plausible it is that a law-review article will move the result directly.

That should change how we describe our work and how we choose among projects.

Write the article because the historical account is wrong. Recover the source because the public should know it exists. Develop the theory because people need better ways to understand their government. File the brief when your contribution is genuinely necessary. Help construct political possibilities beyond the courts.

But do not mistake the final push for the force that produced the outcome.

The toad is not worthless. The toad is not powerless. The toad may supply the small increment that completes a much larger collective effort. There is dignity in that role, especially when it is performed without delusions of grandeur.

So be the toad, by all means. Push when pushing will help.

Just look around at the rest of the barnyard before thinking that you moved the truck.

I have been reading Hannah Arendt’s The Human Condition. Early in the book, Arendt pauses over a familiar philosophical problem: Can human beings define human nature?

Her answer is basically no. We can describe the properties of other things because we stand outside them. We can classify rocks, plants, and animals as objects of inquiry. But we cannot obtain the same perspective on ourselves. We cannot escape the human faculties, categories, and conditions through which we perceive humanity. Trying to define human nature from the outside, Arendt writes, would be like “jumping over our own shadows.”

The metaphor is useful for thinking about the Supreme Court. It is especially useful for thinking about Chief Justice John Roberts.

The Roberts Court routinely speaks as though it occupies a position outside the constitutional order. It surveys Congress, the presidency, and the administrative state from above. It classifies their powers. It determines which institutional arrangements are constitutional, which are aberrations, and which may survive only as carefully policed historical exceptions.

But the Court is not outside the constitutional order. It is one of the institutions struggling for power within it. Its precedents have helped construct the categories it now treats as natural. Its decisions alter the institutional arrangements it purports merely to describe. Its historical narratives determine which parts of the American state receive constitutional recognition and which are consigned to illegitimacy.

The Court cannot jump over its own shadow.

The problem is that John Roberts writes as though it can.

The God of Lawyers

Arendt’s broader argument is that attempts to define human nature almost inevitably end with the construction of a deity. Only a god could view humanity from the necessary external perspective. Only a creator could speak about a human “who” as though it were a definable “what.”

Something similar happens in constitutional law.

The attempt to identify the eternal essence of “executive power” requires a constitutional interpreter who somehow stands outside the Constitution. That interpreter must distinguish the executive from the legislative and judicial, classify every administrator, and determine which governmental arrangements correspond to the Constitution’s true nature.

The interpreter must, in other words, possess a view from nowhere.

In the Roberts Court’s administrative law, the god of the philosophers becomes the Chief Justice of the lawyers.

This is the underlying move in Trump v. Slaughter. Roberts begins with the proposition that the Framers vested “the executive Power” in a single President. From there, the opinion treats presidential control as the natural state of administration. Congress may create offices, assign functions, and establish procedures. But once an officer exercises executive power, that officer presumptively falls within the President’s chain of command.

That conclusion is presented as though it follows from the essential nature of executive power itself. The Federal Trade Commission enforces federal law. Law enforcement is executive. Executive officers must be controlled by the President. Therefore, Congress cannot protect FTC commissioners from presidential removal.

The opinion sweeps away Humphrey’s Executor, a ninety-year-old precedent permitting Congress to insulate FTC commissioners from removal. Roberts insists that the Court has long since abandoned the idea that some governmental powers could be only partly executive. All executive power is executive power, and all executive power must ultimately belong to the President.

This sounds like classification. It is actually construction.

The Court is not discovering the FTC’s natural constitutional essence. It is choosing which features of the institution matter. The FTC’s enforcement authority becomes constitutionally decisive. Its multimember structure, bipartisan design, statutory duties, adjudicative functions, expertise, and congressionally mandated independence become incidental. Congress’s institutional judgment is displaced by the Court’s preferred abstraction.

Roberts then adds a remarkable flourish. In overruling Humphrey’s, he explains that “only we may readily fix our own mistakes.”

There is the juristocratic project in miniature. Congress created the FTC. Congress determined how the Commission should be structured. Presidents and legislators organized government around that settlement for generations. But the Court alone decides whether the settlement was a constitutional mistake—and the Court alone possesses the power to fix it.

The Shadow Appears

The trouble with essentialist reasoning is that the real world keeps producing counterexamples.

If all administration is executive, and all executive power must be controlled by the President, what happens to administrative judges? What happens to the Tax Court? What happens to military tribunals? What happens to the civil service? What happens to officials whose independence is necessary precisely because they must decide cases, distribute money, or apply law without fear of political retaliation?

And what happens to the Federal Reserve?

The Court answers that last question in Trump v. Cook, issued the same day as Slaughter. There, Roberts does something that his reasoning in Slaughter should make almost impossible: he recognizes a powerful administrative institution that may remain independent from presidential control.

President Trump had attempted to remove Federal Reserve Governor Lisa Cook. The lower courts prevented the removal, and the administration asked the Supreme Court to intervene. Roberts, joined by the three liberal Justices and Justice Kavanaugh, refused. He concluded that the administration had not established cause for Cook’s removal and that she was entitled to notice and some opportunity to respond before she could be fired.

But Roberts went much further than was necessary to resolve an application for interim relief. He announced that the Federal Reserve occupies a constitutionally distinctive position because it follows in the historical lineage of the First and Second Banks of the United States. Those institutions, he reasoned, were deliberately insulated from presidential control because the Founding generation understood the dangers of political interference with monetary policy. The modern Fed preserves that basic principle under modern conditions. It need not remain “trapped in amber.”

So the Court’s new constitutional order begins to take shape:

The FTC is an executive institution and must be subjected to presidential control.

The Federal Reserve is an executive institution but may remain independent because the Court considers it part of a special historical tradition.

Congress built both institutions. Congress protected both from at-will removal. Congress concluded that both would perform their functions better at some distance from raw presidential politics.

But Congress no longer gets to decide which forms of independence are legitimate. John Roberts does.

That is not simply interpretation. It is constitutional curation.

History as Permission Slip

Roberts’s opinions are not entirely inconsistent. There is a deeper logic connecting them.

In Slaughter, the Court destroys a general congressional power to create independent administration. In Cook, it preserves a specific independent institution that the Court regards as unusually valuable, historically prestigious, and systemically stabilizing.

The result is not the abolition of the administrative state. It is the reordering of the administrative state around judicial permission.

Independent institutions may survive, but only if courts can fit them into a judicially approved historical lineage. Congress’s judgment is no longer enough. Longstanding practice is no longer enough. Functional necessity is no longer enough. An institution needs a pedigree that the Court is willing to constitutionalize.

This is the emerging accommodation between presidentialism and juristocracy.

Presidentialism supplies the default rule: administration belongs under presidential command. Juristocracy supplies the exceptions: the Court determines when history, structure, due process, or institutional stability justifies some departure from presidential control.

The President gains a constitutional presumption of control. The Court gains the authority to decide where that presumption stops. Congress gets squeezed from both directions.

This arrangement helps explain why Roberts can look anti-Trump in Cook and pro-Trump in Slaughter. Roberts is not simply choosing between Trump and the administrative state. He is distinguishing Trump’s personal ambitions from the Court’s institutional project.

Trump wants the power to purge administrators.

Roberts wants a doctrine governing which purges are constitutionally permissible.

Trump wants personal control of the Federal Reserve.

Roberts wants the Court to decide that the Federal Reserve is exceptional.

Trump wants to personalize the state.

Roberts wants to judicialize the terms on which the state may be personalized.

These projects overlap, but they are not identical. Roberts will resist Trump when Trump’s actions threaten an institution Roberts believes should be stabilized. That resistance does not make the Chief Justice an enemy of presidentialism. It makes him the manager of the accommodation.

The Human-Made World of Administration

Arendt offers another useful distinction. The “human condition” is not the same thing as human nature.

Human beings live amid conditions they did not choose: birth, mortality, embodiment, the earth. But they also manufacture new conditions for themselves. We construct buildings, technologies, laws, offices, markets, and political institutions. Once created, these things cease to be passive objects. They begin to shape the people who made them.

That is a better way to understand the administrative state.

The categories of “executive,” “judicial,” “quasi-judicial,” “independent,” and “politically accountable” are not natural properties floating outside history. They are tools that generations of lawmakers, judges, administrators, and citizens developed to organize government. Institutional arrangements were made in response to particular problems. Once established, they conditioned the future development of American law.

Congress created commissions because some public functions appeared to require expertise, continuity, deliberation, impartiality, or distance from immediate partisan control. Legislators grafted judge-like procedures onto administration because people expected certain decisions to be made through notice, evidence, reason, and fair process. Fiscal and monetary administration was frequently placed at some remove from hierarchical political control because lawmakers feared corruption, manipulation, and self-dealing.

These arrangements were human-made. But they became part of the constitutional world Americans inhabited.

That is the central insight behind the history of quasi-judicial administration. The point is not that administrators secretly exercise Article III power. The point is that Anglo-American lawmakers repeatedly borrowed the norms and institutional virtues associated with judging when they confronted sensitive administrative functions. They used law to create decisional impartiality inside the executive branch.

Roberts sees pieces of this tradition. Cook practically depends on it. The opinion recognizes that some administrative functions cannot retain their legitimacy if they become mere extensions of presidential will. It concludes that a protected term of office carries procedural consequences: notice, charges, and an opportunity to respond. It acknowledges that the appearance of institutional independence can itself matter.

But Roberts refuses to accept the democratic implication of that history.

The history does not merely empower courts to recognize isolated exceptions. It demonstrates that Congress has long possessed authority to construct institutions that mediate between hierarchy, expertise, impartiality, and political accountability. It shows that constitutional governance has never been reducible to a President commanding subordinates while courts patrol the perimeter.

Roberts takes a history of legislative constitutionalism and turns it into a source of judicial dispensations.

Juristocracy’s View From Nowhere

Juristocracy is not simply a Court invalidating legislation. It is a mode of government in which judges absorb basic questions of institutional design into constitutional law.

Which administrators must answer directly to the President?

Which functions require decisional independence?

Which historical practices are sufficiently analogous to modern institutions?

Which forms of stability deserve protection?

Which congressional settlements may survive?

In Roberts’s constitutional order, these become judicial questions. The Court converts decisions once made through legislation, institutional experimentation, and political struggle into matters for judicial resolution. It then describes that transfer of authority as ordinary constitutional interpretation.

That is the shadow Roberts cannot escape. The Court’s account of the separation of powers is produced by an institution with an enormous stake in the answer. Its insistence that every executive officer must be controlled by the President conveniently leaves the judiciary as the only institution entitled to define the limits of presidential control. Its attack on congressional discretion enlarges judicial discretion. Its theory of presidential accountability creates new occasions for judicial supremacy.

The Chief Justice is not observing the constitutional system from the outside. He is reallocating power within it.

Even Cook contains a striking acknowledgment of this. Responding to colleagues who thought the Court should say less on an interim application, Roberts explained that the decision about how much to announce could not be reduced to a mechanical formula. It was ultimately a matter of judicial prudence. The Court had engaged in months of internal deliberation and decided that the public should not remain uncertain about the Federal Reserve’s constitutional status.

In other words, the Court constitutionalized the Fed’s special position because five Justices decided that institutional stability required them to do so.

That may have produced the right result in Cook. But we should be clear about the structure of authority it represents.

The Federal Reserve remains independent not because Congress possesses a general power to protect sensitive administration. It remains independent because the Supreme Court has selected it for preservation.

The Chief’s Shadow

The most revealing thing about Cook and Slaughter is therefore not that they contradict each other.

It is that they fit together.

In Slaughter, Roberts subjects ordinary independent administration to presidential control. In Cook, he rescues one elite institution through a historical exception. The two cases construct a constitutional order in which the administrative state survives through an accommodation between presidential hierarchy and judicial permission.

That is Roberts’s juristocracy.

It is more sophisticated than Trumpism. It is more selective than the maximalist unitary executive theory. It is more institutionally sensitive than the opinions of Clarence Thomas or Samuel Alito. But it is also more durable. As I’ve said before, Roberts makes radical transfers of power look like careful acts of preservation. He transforms constitutional arrangements while presenting himself as the custodian of stability.

Arendt’s metaphor helps us see the trick.

Roberts writes as though the Court can stand outside American government and identify the true nature of its institutions. But the Court’s categories are historically situated. Its doctrines are exercises of power. Its historical narratives are choices about constitutional memory. Its opinions do not merely describe the world of government. They remake it.

The Chief Justice cannot jump over his own shadow.

The danger is that he can make the rest of the constitutional order live inside it.

Every film canon needs at least one movie that feels like it got into the room through the wrong door. Alex Cox’s cult western, Walker, is that movie for an LPE film series.

It is neither subtle nor elegant. It is not trying to persuade the skeptical viewer through quiet accumulation, moral ambiguity, or prestige-drama restraint. Walker is a punk historical epic about American empire, made by a British director, written by Rudy Wurlitzer, scored by Joe Strummer, financed in part through the ordinary machinery of commercial cinema, and shot in Sandinista Nicaragua while the Reagan administration was backing the Contras. Criterion describes the film as Cox and Wurlitzer’s “bloody comic opera cum parable” against Reagan’s Contra policy. The film itself breaks the nineteenth-century frame with helicopters, contemporary magazines, cars, and consumer detritus until the past and present collapse into one another.

That is what makes it useful. Walker does not contain a clean policy lesson. It is a film about law and political economy because it understands empire as a joint venture between capital, violence, racial hierarchy, and constitutional form. Its great subject is not simply that America did terrible things abroad. Its great subject is that private power repeatedly learns how to become public power. The mercenary becomes a president. The adventurer becomes a founder. The investor becomes a geopolitical actor. The constitution becomes a license. And all throughout, law does not arrive to civilize conquest. Law arrives to give conquest its form.

The Joint

The historical William Walker was a Tennessean, a physician, lawyer, journalist, and filibuster who entered Nicaragua in 1855 with fifty-seven soldiers of fortune, seized Granada, became commander of the Nicaraguan army, and was inaugurated as president of Nicaragua on July 12, 1856. Once in power, he declared English an official language, reorganized fiscal policy to encourage U.S. immigration, confiscated estates, sold property to American supporters, and annulled Nicaragua’s prohibition on slavery in the hope of securing southern support.

Cox turns that history into an obscene political hallucination. Ed Harris plays Walker as a man whose face has hardened around an idea. He is not charming in the ordinary sense. He is not seductive like a demagogue who understands crowds. He is more frightening than that: a zealot who treats his own will as evidence of Providence. He speaks in the idiom of liberty, democracy, civilization, destiny. But every act of liberation produces more domination. Every gesture of constitutionalism produces more arbitrary power.

The film begins by showing Walker as a failed revolutionary in Mexico, a man acquitted for violating neutrality laws because the United States cannot quite bring itself to punish men who commit violence in the name of expansion. He is a crank, but a socially legible crank. He has credentials, manners, and what sounds like political theory. And then Vanderbilt enters.

In the film, Cornelius Vanderbilt does not care about Nicaragua as a people, a polity, or a place. Nicaragua is a route. It is infrastructure. It is a transit corridor between oceans, a commercial hinge in a world being organized around movement, extraction, and profit. Historically, Vanderbilt’s Accessory Transit Company controlled a lucrative route across Nicaragua for passengers traveling between New York and San Francisco, and Walker’s rise and fall were deeply entangled with that route. The Pennsylvania Gazette’s account of Walker notes that Vanderbilt’s company had contractual control over the route and that Walker’s later seizure of its boats helped turn Vanderbilt into one of his most powerful enemies.

This is where the film becomes especially valuable for LPE. Walker does not invade Nicaragua merely because he is crazy. He invades because there is a market opportunity, a geopolitical opening, a racial project, and a legal vocabulary ready to absorb him. He is an entrepreneur of sovereignty. He is not just killing people. He is building a regime.

At first, he arrives as a private soldier of fortune. Then he becomes a military commander. Then he becomes the man behind the government. Then he becomes the government. Eventually, in one of the film’s sharpest constitutional jokes, he invokes the new constitution as authority for doing “whatever [I want.” This absurd line captures the deeper logic of the film: domination becomes most dangerous when it learns to speak law.

Alex Cox’s anti-prestige historical film

Walker belongs to a family of political films that refuse the decorum of historical seriousness. Cox does not want the viewer to say, “That was another time.” He keeps sabotaging that comfort. A nineteenth-century military adventure suddenly fills with Coke bottles, Marlboros, automatic weapons, newsmagazines, and finally a helicopter. The point is not that Cox forgot what century he was in. The point is that America keeps returning to adventures South of its border (a point brought home by recent actions in Venezuela).

The anachronisms are the whole argument. They do not say, “Walker was exactly Reagan.” They say something more corrosive: the grammar of intervention survives changes in costume. In the 1850s it is Manifest Destiny, filibustering, slave-state expansion, canal routes, and private military adventure. In the 1980s it is anti-communism, covert aid, deniability, humanitarian rhetoric, and proxy war. The legal forms change. The moral alibis change. The underlying structure remains recognizable.

The film’s production history matters here. Walker was made in Nicaragua during the Contra War, with Sandinista cooperation, and Criterion’s essay on the film describes the production as self-consciously opposed to the Reagan administration’s support for the Contras. Walker is not using history as an analogy in the weak sense. It is using history as an indictment. Cox is not just saying that the past resembles the present. He subtly suggests that the political economy of empire remains remarkably unchanged.

Law as the afterlife of conquest

The usual way to describe Walker is as a fanatic. This is insufficient. Jonathan Rosenbaum saw the problem clearly in his contemporary review: depicting Walker as mad works rhetorically but does not fully explain the social and political conditions that made him possible.

That criticism should not lead us to dismiss the film. It tells us how to read it. The crucial point is that Walker’s madness is socially produced, institutionally enabled, and politically useful. He is not an alien visitor who descends upon a rational order. He is an extreme expression of things that order already values: enterprise, courage, racial confidence, legal ingenuity, Christian providentialism, masculine will, and the conversion of violence into property.

For LPE purposes, the film’s key move is to refuse the separation between market and state. Vanderbilt’s interest is not merely economic, while Walker’s project is merely political. The economic project needs political control; the political project needs economic infrastructure. Transit routes, contracts, steamships, ports, guns, credit, land, labor, and recognition all become part of the same field. The market does not sit outside empire. It helps build empire’s roads.

Nor does law sit outside this system. Law is everywhere in Walker, but almost never as a serious constraint. Neutrality law can be evaded. Constitutions can be rewritten. Property can be confiscated. Slavery can be restored. Offices can be claimed. Recognition can be sought. The entire film is a nightmare version of public law in which every legal form is available for capture by the person ruthless enough to seize it.

This is why Walker may be especially useful. Harakiri shows law as a ritual order that converts social cruelty into honor. Walker adds something different: it shows the moment before public authority has stabilized, when the entrepreneur of violence is still becoming the state.

Empire as a disordered system

The danger of Walker is that it can make imperialism look too much like one man’s mental illness. Harris is so rigid, so feverish, so locked inside Walker’s own rhetoric, that the viewer may come away thinking the story is about delusion rather than structure. That is the limitation of the film. It is also part of its cult power.

Cox wants Walker to be ridiculous. He wants the costumes to look both period-specific and absurd. He wants the violence to be horrifying and slapstick. He wants the slogans to sound deranged. He wants the political speeches to curdle in the mouth. The film is not interested in the calm, systems-theory version of empire. It is interested in the psychic pleasures of domination. Empire is not only profitable. It is fun for the people doing it. It offers them grandeur, masculinity, destiny, romance, theatricality, and the right to mistake other people’s suffering for one’s own world-historical importance.

That matters. One defect of some political economy writing is that it can describe domination so structurally that it loses sight of the libidinal charge of power. Walker does not have that problem. It understands that empire is not just an arrangement of interests. It is also a fantasy life. Walker does not merely want money. He wants to be history’s instrument. He wants to be a founder. He wants the world to ratify the relationship between his inner life and geopolitical order.

But the film is strongest when it shows that the fantasy requires institutions. Walker’s delusions would remain pathetic if capital, soldiers, newspapers, legal forms, racial ideology, and U.S. recognition did not make them actionable. The madman matters because the world has been organized to make his madness govern.

The racial political economy of filibustering

The film’s invocations of slavery are very important. Walker begins as a man who can be imagined as anti-slavery or at least not reducible to proslavery politics. But once in Nicaragua, he turns toward slavery because the project demands a coalition, and the coalition available to him runs through the American South. The Tennessee Encyclopedia states the point plainly: Walker annulled Nicaragua’s constitutional prohibition on slavery to secure support from southern states.

This is where the film’s LPE significance sharpens. The restoration of slavery is not a random moral collapse. It is political economy. Walker needs labor discipline, settler recruitment, southern legitimacy, and a racial order capable of stabilizing conquest. Slavery appears as an institutional technology, a way of making empire durable by organizing land, labor, status, and violence. In one scene, Harris’s Walker explains that slavery will destroy dissent and disorder by providing structure between Nicaragua’s different classes.

The film therefore resists the comfortable fantasy that markets and freedom naturally travel together. The transit route, the commercial opportunity, the promise of immigration, the seizure of estates, and the restoration of slavery are not separate episodes. They are parts of one regime-making process. Empire needs movement, but it also needs fixity. It needs ships, roads, and capital flows; it also needs racial hierarchy, coerced labor, and the distribution of legal personality.

This is why Walker is more than an anti-war film. It is a film about racial capitalism as constitutional founding. Walker does not merely conquer Nicaragua. He tries to remake it into a jurisdiction suitable for American domination.

Does it belong in an LPE film canon?

Yes, although maybe in the second tier.

It belongs not because it is a perfect film, but because it is a necessary one. Its flaws are inseparable from its usefulness. It is overbroad, ugly, unsubtle, and sometimes too fascinated by the American villain at its center. Nicaraguans often appear as victims, witnesses, lovers, rebels, and moral correctives rather than as fully developed political actors. That is a real problem. A film about American empire can reproduce the imperial gaze even while denouncing empire.

But for this project, that problem can become part of the conversation. Walker is about the difficulty of making an anti-imperialist film within representational forms that still gravitate toward the imperial protagonist. It wants to condemn Walker, but it also cannot stop watching him. That tension is not incidental. It is the same tension that haunts American political culture more generally: we are horrified by the strongman and mesmerized by him; we denounce arbitrary power and organize our narratives around the people who wield it.

The best reason to include Walker is that it makes an argument the LPE tradition should care about deeply: sovereignty is not always born in public law. Sometimes it is incubated in private ambition, commercial infrastructure, racial fantasy, and paramilitary violence. The state arrives later, wearing a sash, holding a constitution, and pretending it was there all along.

How to program it

I would program Walker in a unit on empire, markets, and public authority. It pairs naturally with The Battle of Algiersfor colonial administration and counterinsurgency and RoboCop for privatization and corporate sovereignty. It also works as the cult-film entry in the series because its cult status is not merely aesthetic. The film itself is a kind of institutional misfire: a major-studio-backed anti-imperialist satire made in revolutionary Nicaragua, too angry and too weird to be assimilated into respectable Hollywood politics.

The discussion should begin with a deceptively simple question: when does Walker become the state? Is it when Vanderbilt funds him? When he lands with armed men? When he wins (really loses) a battle? When he controls the army? When he rewrites the constitution? When the United States recognizes him? Or was the point always that sovereignty is not a moment, but a process by which violence, money, law, and recognition converge?

That is why Walker belongs. It is a film about American empire, but more specifically it is a film about the legal form of empire. It shows how conquest becomes administration, how administration becomes constitutionalism, and how constitutionalism becomes the polite name for doing whatever power wanted to do anyway.

Alex Cox’s deranged anti-imperialist biopic turns the career of William Walker—the American filibuster who made himself president of Nicaragua—into a punk theory of law and political economy: capital finances conquest, conquest manufactures sovereignty, and constitutional law arrives to bless the result.

Richard Re’s two recent posts are useful because they refuse the crudest account of John Roberts. The crude account says Roberts has simply stopped being an institutionalist and become another conservative vote. Re’s essays are better than that. They see that Roberts remains distinctive. He still thinks institutionally, he still cares about the Court’s authority, he still tries to discipline the conservative legal movement’s more destabilizing impulses, and he still understands himself as managing constitutional change, not merely participating in it.

That is the virtue of both pieces. Re does not treat Roberts as a hack carrying the GOP’s water. He treats him as a jurist with a project.

But that is also where the essays become too charitable. They explain Roberts mostly in Roberts’s own language: stability, moderation, minimalism, gradualism, institutional legitimacy. Those are real aspects of Roberts’s judicial style. But they are not the essence of his jurisprudence. They describe how Roberts manages power, not what power he is managing toward.

The better question is not whether Roberts has become more maximalist or whether he is still moderating. The better question is: what constitutional order is Roberts trying to stabilize, and what role does the Court assign itself within that order?

That is where my own work points toward a different account. Roberts is not simply an institutionalist defending stability. He is a juristocrat managing an accommodation between presidentialism and judicial supremacy. His administrative law is not merely conservative and not merely pragmatic. It is a form of Americana Administrative Law: a nostalgic, court-centered vision of governance that invokes an idealized constitutional past in order to discipline Congress, subordinate administration, and enlarge the judiciary’s authority over the basic terms of government.

Re sees important features of Roberts’s style. But he does not fully capture Roberts’s structure of power.

Re’s First Essay: Maximalism in Defense of Stability

Re’s first essay begins from an apparent contradiction. Roberts has long been associated with judicial minimalism. He is supposed to prefer narrow rulings, avoid unnecessary constitutional questions, preserve room for future cases, and decide no more than the dispute requires.

But in Trump v. Barbara and Trump v. Cook, as Re describes them, the Court did more than that. In Barbara, the Court did not merely dispose of the birthright-citizenship dispute on narrow grounds. It spoke broadly enough to stabilize the constitutional rule. In Cook, the Court did not merely reject Trump’s attempt to remove Lisa Cook from the Federal Reserve Board on procedural or fact-specific grounds. It reached the larger question of the Federal Reserve’s unique statutory setup and effectively constitutionalized the Fed’s special status.

For Re, this shows that Roberts’s minimalism contains an exception. Ordinarily, deciding less promotes stability. But sometimes deciding less produces instability. Sometimes uncertainty itself becomes the danger. When the constitutional status of birthright citizenship or the independence of the Federal Reserve remains unsettled, the costs of judicial silence may exceed the costs of judicial breadth.

That is Re’s central formulation: Roberts is practicing maximalism in defense of stability.

It is an elegant argument. It captures something real about the way Roberts justifies broad decisions. Roberts rarely presents himself as a revolutionary. Even when he transforms doctrine, he writes as though he is preserving something deeper than precedent: constitutional structure, settled expectations, legal regularity, institutional continuity. Re is right that Roberts’s maximalism often takes the form of preservation. The Court says more than necessary not because it has abandoned restraint, but because it believes restraint would leave an intolerable uncertainty in place.

There is real explanatory power in that. Cook is a particularly good example. Federal Reserve independence is not simply another agency-design question. It implicates monetary credibility, financial markets, elite institutional confidence, and the government’s capacity to project stability. A narrow opinion might have produced doctrinal restraint but institutional anxiety. A broad opinion would require doctrinal aggression but might ensure institutional calm.

So Re’s first essay gets at something important: Roberts’s Court often treats judicial breadth as the price of constitutional settlement.

But the weakness of the argument is that “stability” is asked to do too much work.

The Limits of Stability

The problem with stability is that it is not self-defining. Stability of what? Stability for whom? Stability at what institutional level?

Jurists have often pursued “stability” at precisely the moments when stability was most morally and politically dangerous. Chief Justice Taney’s opinion in Dred Scott is the canonical example. The decision was not written as an invitation to chaos. It was written as an attempted settlement. Taney sought to remove slavery from ordinary democratic contestation, quiet sectional conflict, protect slaveholding expectations, and impose a judicially managed constitutional peace. But that peace was purchased by constitutionalizing racial subordination and chattel slavery. In the name of stability, the Court stripped Congress of authority, degraded Black citizenship, entrenched the slave power, and helped push the country toward disunion. The lesson is not that courts should be indifferent to destabilizing consequences. It is that stability is never self-justifying. A Court that asks only whether uncertainty is dangerous may miss the more important question: whether the settlement it is stabilizing is itself the source of constitutional crisis.

There is stability in preserving birthright citizenship. There is stability in preserving the Federal Reserve. But there was also stability in preserving Chevron. There was stability in preserving the Voting Rights Act. There was stability in preserving the basic New Deal accommodation between Congress, agencies, courts, and the President. There was stability in preserving Congress’s long practice of structuring administrative offices around expertise, decisional independence, and legally bounded discretion.

The Roberts Court has not been a Court of stability in any general sense. It has destabilized enormous areas of law. It has remade administrative law. It has weakened congressional regulatory authority. It has narrowed voting-rights protections. It has transformed presidential immunity. It has unsettled long-standing doctrinal settlements in the name of a higher constitutional restoration.

So stability cannot be Roberts’s governing principle. At most, it is a principle he invokes when he has already decided that a particular settlement deserves preservation.

That is the central gap in Re’s first essay. It explains why Roberts may want to stabilize some institutions. It does not explain how Roberts decides which institutions deserve stability.

This is where Americana Administrative Law becomes useful. Roberts’s administrative law often works through a nostalgic constitutional aesthetic. It imagines a lost world of clear legislative authorization, bounded administration, judicially enforced limits, and constitutionally legible institutional roles. It invokes the ideal of Congress as a deliberative lawmaking body while using doctrine to discipline the actual Congress that exists. It says, in effect: Congress may govern through administration only if it does so in the terms the Court recognizes as constitutionally authentic.

That is why Roberts’s stability is selective. He is not stabilizing the administrative state. He is stabilizing those fragments of the administrative state that can be incorporated into the Court’s preferred constitutional story.

The Federal Reserve can be stabilized because it can be narrated as exceptional: financially sensitive, institutionally venerable, market-stabilizing, and historically distinctive. Birthright citizenship can be stabilized because it reflects a constitutional settlement so foundational that undoing it would appear not as ordinary legal change but as civic rupture. But ordinary administration, broad delegation, agency interpretation, and independent regulatory power do not receive the same solicitude. They are treated as suspicious modern accretions unless they can be translated into the Court’s curated historical categories.

That is not neutral stability. It is constitutional curation.

Re’s Second Essay: Moderating from the Front

Re’s second essay makes a different but related claim. It argues that Roberts has not stopped being an institutional moderate. Rather, he now moderates differently.

Earlier in his tenure, Roberts could sometimes moderate by standing between blocs. He could narrow conservative outcomes, join liberals in institutional cases, or avoid sweeping doctrinal change. But once the conservative majority became secure, Roberts’s role changed. If he wanted to shape the Court, he had to remain inside the conservative coalition. He had to lead it.

That is what Re means by moderating from the front.

Roberts moderates not by defeating conservative outcomes, but by controlling their form. He writes the majority opinion. He manages the coalition. He prevents sharper opinions from becoming law. He channels conservative ambition into doctrinally usable forms. He turns potentially explosive claims into respectable holdings. He preserves the Court’s institutional capital while still moving doctrine rightward.

Again, this is a valuable observation. Roberts is not simply a vote. He is an institutional manager. He often distinguishes between Trump’s immediate political interests and the longer-term interests of conservative constitutional law. When Trump threatens the Court’s authority, the legal system’s credibility, or the stability of elite institutions, Roberts may resist him. But that does not make Roberts a liberal or even a centrist. It makes him a steward of a different conservative project.

Re’s second essay is strongest when it sees that Roberts’s anti-Trump moves are not necessarily anti-conservative moves. Roberts can reject Trump’s tariff theory, reject Trump’s birthright-citizenship order, and reject Trump’s attempted removal of Lisa Cook while still advancing a conservative restructuring of constitutional law. Trump wants personal control. Roberts wants judicially administered constitutional hierarchy. Those interests overlap often, but not always.

Still, “moderating from the front” has the same limitation as “maximalism in defense of stability.” It captures Roberts’s style without fully explaining his project.

The Limits of Moderation

Moderation is also not self-defining. Moderate compared to what? Clarence Thomas? Samuel Alito? The Republican Party? The pre-Roberts constitutional baseline? The Warren Court? The New Deal settlement?

Roberts often appears moderate only because the available comparison is more extreme. But a decision can be moderate relative to Thomas and radical relative to existing law. That may be Roberts’s signature move: he makes transformation look like statesmanship.

That is why the language of moderation can mislead. Roberts can moderate tone while intensifying judicial power. He can moderate doctrine’s surface while shifting the institutional baseline. He can reject Trump’s most lawless claims while entrenching a constitutional structure in which executive power and judicial supremacy reinforce one another.

This is where the concept of judicial self-aggrandizement matters.

Judicial self-aggrandizement is not the same thing as judicial activism. It is not merely the invalidation of statutes. It is not merely judicial supremacy in the abstract. It is the Court’s accumulation of institutional authority to decide more and more of the basic questions of governance. It is the judiciary’s ability to convert political, administrative, and legislative questions into judicial questions, and then to present that conversion as the ordinary operation of law.

Roberts’s moderation often functions as a mechanism of self-aggrandizement. By writing narrower opinions, maintaining institutional tone, and avoiding the most inflammatory versions of conservative doctrine, Roberts makes judicial expansion more durable. He reduces backlash. He preserves legitimacy. He ensures that the Court remains the institution through which the administrative state, presidential power, congressional capacity, and democratic governance are filtered.

So the problem with Re’s second essay is not that it is wrong to describe Roberts as moderating from the front. The problem is that the phrase risks accepting Roberts’s own self-presentation. It treats moderation as a virtue without asking what moderation is making possible.

Roberts is not merely moderating the conservative majority. He is managing judicial self-aggrandizement.

The Shared Blind Spot: The Accommodation

Taken together, Re’s two essays describe Roberts as a judge of stability and moderation. But the more revealing frame is the Accommodation.

The Accommodation is not the old New Deal settlement. It is not the classic arrangement in which courts grudgingly accepted the administrative state while preserving judicial review at the margins. Nor is it simply the “accommodation of Progressive Legal Theory” that Mark Tushnet describes in connection with administrative law in the 1930s.

The emerging Roberts-era accommodation is different. It is an accommodation between presidentialism and juristocracy.

The administrative state survives, but on terms set by the President and the Court. Congress’s role is narrowed. Agencies are made more vulnerable to presidential direction. Broad delegations are treated with suspicion. Agency interpretations lose deference. Major policy questions are reserved for judicial recognition of congressional clarity. Independent administration is placed under pressure unless it can be redescribed as historically exceptional. The President gains control over administration, but the Court gains control over the legal conditions under which that presidentialized administration may operate.

That is the deeper structure Roberts is building.

This is why Roberts can appear both anti-administrative and pro-institutional, both anti-Trump and pro-executive, both minimalist and maximalist. He is not trying to abolish the state. He is trying to reorder it.

The state that emerges from this project is not libertarian. It is not simply anti-regulatory. It is a state in which the President and the Court become the dominant constitutional actors. Presidentialism supplies energy, hierarchy, and democratic rhetoric. Juristocracy supplies legality, boundaries, and institutional legitimation. Congress becomes a diminished source of text to be parsed, clarity to be demanded, and authorization to be policed. Agencies become instruments whose legitimacy depends on presidential control or judicially approved historical exception.

That is the Accommodation.

Re’s first essay sees the stabilizing moves. Re’s second essay sees the leadership moves. But neither fully names the institutional settlement those moves produce.

Roberts’s Americana Administrative Law

This accommodation depends on a particular kind of legal imagination: Americana Administrative Law.

Americana Administrative Law is not simply originalism. It is not simply textualism. It is not even simply anti-administrativism. It is a nostalgic vision of administrative legitimacy organized around idealized images of Congress, courts, and executive power.

It imagines Congress as a body that should speak clearly, specifically, and formally before agencies may act on major questions. It imagines courts as the neutral guardians of that legislative clarity. It imagines the President as the constitutionally legible head of administration. It imagines agencies as constitutionally suspect when they combine expertise, discretion, insulation, and policymaking in ways that do not map neatly onto judicially favored categories.

This is why the major questions doctrine is so central. MQD is not only a doctrine about agencies. It is also a doctrine about Congress. It uses judicial review to change Congress’s internal incentives. It tells Congress that ordinary legislative practice is not enough. It requires Congress to legislate in a form that satisfies the Court’s vision of democratic authorization. It is therefore not simply a check on the administrative state. It is a judicial intervention into the legislative process.

That is the point of calling it Americana. The doctrine trades on a sentimental picture of Congress: the town-meeting legislature, the transparent lawmaker, the body that speaks in clear civic prose before great national questions are resolved. But the actual Congress is a complex institution operating through committees, delegations, appropriations, oversight, bargaining, and administrative design. Americana Administrative Law treats that institutional complexity as a constitutional defect.

Roberts’s administrative law therefore does not simply restore Congress. It disciplines Congress. It invokes Congress in order to empower courts.

That is judicial self-aggrandizement in congressionalist clothing.

Cook, Barbara, and the Court’s Selective Preservation

This framework helps explain why Cook and Barbara matter.

On Re’s account, they show Roberts’s willingness to decide broadly in defense of stability. On my account, they show the Court deciding which settlements can be incorporated into the Accommodation.

Barbara stabilizes birthright citizenship because destabilizing it would threaten the basic constitutional identity of the polity. It would make the Court appear complicit in civic rupture. Stabilizing birthright citizenship therefore protects not only citizenship, but the Court’s own claim to stand above Trumpian personalism.

Cook stabilizes the Federal Reserve because the Fed occupies a special place in the constitutional political economy of the modern state. It is independent, but not independent in the same way the FTC, NLRB, or other regulatory agencies are independent. It is technocratic, fiscally sensitive, market-facing, globally significant, and elite-legible. It can be treated as exceptional without broadly validating the independent administrative state.

That is the key. Roberts can save the Fed without saving independent administration as such. He can preserve central banking while continuing to erode other forms of administrative independence. He can stabilize the institution that markets require while maintaining pressure on institutions that regulate markets.

This is exactly where Re’s stability frame needs supplementation. The question is not merely why Roberts stabilized the Fed. The question is why Fed independence can be stabilized while other forms of administrative insulation remain constitutionally vulnerable.

My work provides a different answer: the Fed is not merely special because it is important. It belongs, or at least can be made to belong, to a longer Anglo-American tradition of insulating officials who exercise judge-like, fiscally sensitive, or legally bounded functions. That tradition includes decisional impartiality, administrative judicialization, and the due process state. It is not a New Deal invention. It is part of the deeper architecture of American governance.

But Roberts’s use of that history is partial. He may preserve the Fed as an exception while refusing to acknowledge the broader tradition that makes the exception intelligible.

That’s the problem.

American Administrative Law Against Americana Administrative Law

Here the distinction between American Administrative Law and Americana Administrative Law becomes central.

Americana Administrative Law is Roberts’s aesthetic. It is nostalgic, selective, and judicially curated. It imagines a constitutional past that empowers courts to discipline modern governance.

American Administrative Law, as my work understands it, is messier and more institutional. It is not a story of pure presidential hierarchy or pure judicial control. It is a story of Congress building administrative capacity, creating offices, structuring decisionmaking, insulating certain functions, imposing procedures, and experimenting with forms of governance that do not fit neatly into modern separation-of-powers boxes.

This history matters because it disrupts both the UET and juristocracy.

Against the UET, it shows that law execution has never meant simple presidential command. American governance has long included administrators who perform executive functions under norms of impartiality, legal constraint, and decisional independence. Quasi-judicial administration is not an anomaly. It is a constitutional tradition.

Against juristocracy, it shows that courts are not the sole authors of administrative legitimacy. Congress built much of the legal architecture that made modern administration legitimate. The APA as administrative law’s superstatute did not simply subordinate agencies to courts; it reflected a broader institutional settlement around administrative judicialization, procedural regularity, and decisional neutrality. Congress, not only courts, constitutionalized the administrative state in practice.

That is why Roberts’s project is so troubling. He takes fragments of this history and turns them into judicial exceptions. He preserves what the Court can recognize and disciplines the rest. He converts a broad tradition of congressional administrative constitutionalism into a narrow set of judicially managed carveouts.

The result is not historical fidelity. It is historical domestication.

Judicial Self-Aggrandizement as the Missing Concept

This is what Re’s essays miss most. Roberts’s institutionalism is not merely a concern for the Court’s legitimacy. It is a practice of institutional expansion.

Roberts’s Court expands judicial authority by making itself the arbiter of administrative legitimacy. It decides when Congress has spoken clearly enough. It decides when an agency question is major. It decides which independent institutions are historically exceptional. It decides when presidential control is constitutionally required and when it must yield. It decides which settlements count as stable and which count as unlawful.

That is judicial self-aggrandizement.

It does not always look aggressive. Sometimes it looks cautious. Sometimes it looks moderate. Sometimes it looks like restraint. Sometimes it looks like stability. But the through-line is the same: more governing questions become judicial questions.

This is why Roberts can be both moderate and aggrandizing. In fact, moderation may often be the form his aggrandizement takes. He does not need to sound like Thomas or Alito. He does not need to announce the most sweeping theory available. By writing careful opinions that preserve the Court’s institutional image, he makes the expansion of judicial authority more acceptable.

That is also why Roberts can oppose Trump. Trumpian presidentialism threatens juristocracy when it denies the Court’s role as the final manager of constitutional meaning. Roberts is not opposed to strong executive power as such. He is opposed to executive power that escapes judicial administration. He can accept presidentialized administration so long as the Court remains the institution that defines its legal limits.

This is the Accommodation instantiated: presidential control below, judicial supremacy above.

Roberts’s Institutionalism Reconsidered

The conventional Roberts question is whether he is still an institutionalist.

The answer is yes, but that answer is incomplete. Roberts is an institutionalist for the judiciary. His institutionalism is court-centered. It is concerned with the Court’s prestige, authority, and capacity to manage constitutional change.

That is not the same as constitutional institutionalism in a broader sense. A genuinely institutional account would care about Congress’s capacity, administrative legitimacy, agency expertise, legislative oversight, the design of quasi-judicial offices, and the historical role of statutory institutions in structuring public power.

Roberts’s institutionalism is much narrower. It protects the Court’s ability to supervise the rest of government.

That is the crucial difference. Roberts may speak the language of constitutional structure, but his structure is organized around judicial finality. He may invoke Congress, but often to discipline Congress. He may defend presidential accountability, but only within a system where courts decide the legal meaning of accountability. He may preserve the Fed, but as an exception the Court recognizes rather than as evidence of a broader congressional power to create insulated administration.

So the real critique of Roberts is not that he lacks institutionalism. It is that his institutionalism is juristocratic.

Re’s Roberts and My Roberts

Re’s Roberts is a sophisticated institutional manager. He sometimes decides broadly to stabilize law. He moderates by leading the conservative coalition. He resists Trump when Trump threatens legal regularity. He preserves the Court’s authority through a mixture of prudence and leadership.

My Roberts is more structural and more troubling.

My Roberts is a builder of the Accommodation. He is not simply navigating between minimalism and maximalism. He is constructing a constitutional order in which administrative governance survives only under the paired dominance of presidentialism and juristocracy. He is not merely stabilizing law. He is stabilizing the Court’s role as the institution that determines which parts of the administrative state are legitimate. He is not merely moderating conservative doctrine. He is making judicial self-aggrandizement appear moderate.

This Roberts is not a hypocritical, unserious partisan. He is more consequential than that. He is the chief architect of a court-centered constitutional settlement.

That is why Re’s essays are useful but incomplete. They describe Roberts’s techniques. They do not fully describe Roberts’s regime.

The Positive Vision: Congress, Quasi-Judicial Administration, and the Due Process State

The alternative is not simply to defend the administrative state as it exists. Nor is it to defend Humphrey’s Executor as if its categories were perfectly reasoned. The better alternative is to recover the actual institutional history of American law.

Administrative law provides an example. The history of American administration shows that Congress has long structured administration around more than just presidential command. Congress has created offices with decisional independence. It has insulated officials performing judge-like functions. It has protected fiscal administration from direct political domination. It has built procedures, boards, commissions, and adjudicative mechanisms designed to preserve impartiality within law execution.

This is the tradition of quasi-judicial administration. It is also the tradition of the due process state.

The point is not that administrators are judges. The point is that American law has repeatedly grafted judge-like norms onto administration when legality, impartiality, money, status, or individual rights required it. That tradition cuts against the strongest versions of the unitary executive theory. But it also cuts against Roberts’s juristocracy because it shows that constitutional legality is not made by courts alone.

Congress is not merely a problem to be disciplined by MQD. Congress is a constitutional actor that built the administrative state. Congress made choices about institutional design. Congress mediated between expertise, democracy, legality, and accountability. Congress constructed much of the machinery through which American public law became real.

This is where my vision differs most sharply from Roberts’s. Roberts’s Americana Administrative Law uses a nostalgic image of Congress to empower courts. My American administrative law recovers Congress as an actual historical institution.

That recovery matters because it offers a way out of the Accommodation. It refuses the forced choice between presidentialism and juristocracy. It insists that administrative law is also a field of legislative constitutionalism. It treats Congress not simply as a source of statutory text, but as an architect of constitutional governance.

Conclusion: Stability for Whom?

Re is right to say that Roberts’s Court cannot be understood through old clichés about minimalism. He is right to say Roberts sometimes uses maximalism to stabilize constitutional law. He is right to say Roberts moderates from within the conservative majority rather than outside it. These are real insights, and they are worth taking seriously.

But they remain too internal to Roberts’s own theory of himself.

The more important point is that Roberts’s stability is selective, his moderation is instrumental, and his institutionalism is juristocratic. He stabilizes the institutions that fit the Court’s constitutional narrative. He moderates the conservative legal movement in order to make its victories durable. He invokes Congress in ways that enlarge judicial authority over Congress. He preserves parts of the administrative state while forcing the rest into an accommodation between presidential control and judicial supremacy.

That is why the language of Americana Administrative Law, judicial self-aggrandizement, and the Accommodation is more revealing than the language of minimalism and moderation.

Roberts is not simply deciding how much the Court should say. He is deciding which institutions deserve constitutional memory. He is not merely preserving stability. He is stabilizing a regime in which the Court decides the terms on which modern government may exist.

The alternative is a thicker history of American administrative law: one that takes Congress seriously, recovers quasi-judicial administration, recognizes the due process state, and refuses to reduce constitutional governance to presidential command checked by judicial permission.

That history does more than defend particular agencies. It challenges the entire Roberts Court settlement. It shows that American constitutional law has always contained more institutional pluralism, more congressional creativity, and more administrative legality than the Court’s nostalgic categories allow.

Roberts’s project is Americana. The answer is the actual workings of the Anglo-American constitutional project.

I think there is a problem here that our ordinary legal discourse is not very good at naming.

The knowledge-production game has done its thing. The revisionist scholarship stacked up and killed every premise undergirding the UET in less than half rhetorical time it took to build up the doctrine. Putting everything together in one place, we’re not dealing with a live historical dispute. We’re left with something more vexing.

The broad historical case for the maximalist unitary executive has become, to use a technical term, cookoo bananas tinfoil hat stuff.

But that’s not how we talk about it in the academy.

We talk as if each new article is just one more contribution to an ongoing conversation. The articles are framed like some new evidence slightly weakens or strengthens the claim that Article II contains a general rule of presidential control and removal.

The Unitarians talk like the burden is on each counterexample to kill the theory by itself. And because no single article, commission, statute, debate, tenure provision, English officeholding practice, or early American administrative arrangement can do all the work alone, the theory survives as a kind of undead proposition.

The way we talk, nobody can either seem to kill the UET or vindicate it.

That’s the problem. The discourse has no good way to say that, at least until something genuinely consequential and new emerges, enough is enoigh!

The UET has always depended on a menus of historical claims that add up to a Whig history.

Unitarians generally claim that the Constitution’s original meaning, structure, and early practice all point toward an indefeasible presidential removal power and some measure of control. .

That historical picture has been collapsing from every direction. As Jed Shugerman says, the pillars of the UET have been falling for years.

First, the Unitarians got the English legal backdrop wrong. The relevant history did not consist of a simple, monarchial hierarchy in which all executive officers served at pleasure. There were offices, including high offices, protected by legal tenure, by property-like understandings of office, by statutory arrangements, by institutional custom, and by the ordinary complexity of early modern governance. The English tradition gave Americans examples of administration that contained more nuance than the UET could ever permit.

Second, American legislatures repeatedly insulated administrators. Law makers enacted term-of-years tenures, created multimember commissions, crafted judge-like procedures, and worked to safeguard decisionmaker neutrality. This was not a New Deal bolt from the blue. It was a recurring feature of American public law.

Third, Unitarians bungled the First Congress. The so-called Decision of 1789 was contested and ambiguous. It did not generate anything like a clear presidential removal power. At most, it shows disagreement, improvisation, and a willingness to solve concrete institutional problems without producing a general theory of presidential supremacy.

Fourth, Founding-era commissions and offices undermine the UET. They show arrangements that are hard to square with a Unitarians’ fantasies of well-ordered presidential hierarchy.

The more historians and legal scholars dig, the more that the revisionist samples look like a project of judicial activism that would have made the Warren Court’s juristocrats blush.

Fifth, the political morality of the theory doesn’t make sense. Modern unitarians buy into presidential representation, the idea that the president alone represent the country as a whole. But that is a twentieth- and twenty-first-century account of presidential democracy, not an obvious description of a Founding that created a much less accountable presidency. The Electoral College, for example, discredits any claim that ~the Founders~ (as opposed to people in the 20th century) worked to create a uniquely representative presidency.

And finally, American constitutional practice pushed back against anything like a general rule of unconditional presidential removal from the Founding, through the nineteenth century, into the early twentieth century. There has never been the consensus the theory needs. There has never been the clean tradition. There has never been a settled practice of presidential removal or control.

Now, if you put those things together, what is left?

It’s not nothing. There are still arguments for presidential power. Maybe some officers perform functions that are too core to modern presidentialism to be regulated by Congress. There are still serious questions about how to distinguish lawful regulation from statutes that might, for whatever reason, be unnecessary or improper.

But the maximalist UET. You just wouldn’t know it by hearing us law professors talk.

This has led me to the conclusion that legal scholarship generally, and legal history specifically, lack a good vocabulary for cumulative defeat.

That deficiency allows bad theories to exist in a zombified twilight. The knowledge-production game has sucked out their life force, only a husk remains.

This dynamic has a lot to do with jurisprudential inertia. Judges like the formalism and the story behind the UET. The doctrine translates a shambolic history into a historical command. That shields their choices from scrutiny. The Constitution made me do it!

At the end of the day, it keeps going because it’s a useful story for the powerful.

I think part of the story is the lawyer’s craving for symmetry and simplicity. I still hear Taft. Why does the president remove? It goes with appointment. And since Taft, there’s just been a type of juristocrat drawn to an argument that connects executive power, law execution, and presidential control with absolutely zero nuance. The history doesn’t pan out because most sane people in American history would have recoiled at the UET if it were ever explained to them.

History is not the unitarians’ friend History has its boot on their necks.

This matters because originalism is often associated with restraint. The judge, we are told, should submit to history rather than impose values. But the UET shows that a court can announce its own history while. It can call that policymaking “structure.” If they are really pressed, they might call it “liquidation.” It can transform contested evidence into constitutional settlement. And it can treat the accumulated work of historians and legal scholars as interesting but never quite decisive.

This is how constitutional adjudication loses its nuance and becomes trial by vibes.

The deeper issue is that legal history in constitutional adjudication can’t just be a box full of indivyalized anti-UET counter examples. At some point, accumulation has to matter.

If the record shows deep disagreement, widespread counterpractice, conflicting institutional forms, and repeated legislative efforts to structure administration outside presidential will, then the responsible conclusion is not that judges should resolve questions left untouched by the Constitution. The responsible conclusion is that the UET is, root and branch, wrong.

And once that conclusion is reached, we have a new and better conversation in front of us.

The question is no longer whether every limit on presidential removal must be justified as a grudging exception to Article II. The question is whether Congress, acting within its constitutional powers, has structured offices in ways that are compatible with the the Anglo-American project.

That is a very different question. It begins from Congress’s authority to create offices, define duties, design procedures, and decide when impartial administration serves the public good. It does not treat presidential domination as the constitutional baseline.

This does not mean anything goes. It means the Constitution does not enact the unitarians’ preferred theory of administration.

That is the point that our discourse keeps circling but rarely says plainly. The problem is not that one more article needs to show one more counterexample. The problem is that the counterexamples have piled up so high that continuing to treat the maximalist UET as a live ball now requires a politeness that borders on dishonesty. (It’s at the very least not playing it straight.)

The knowledge-production game has done its thing. The history is too messy, too plural, too legislative, and too judge-like, to sustain the UET. We’re just left with a folk tale about presidential democracy.

Let’s just say that.

The unitary executive is not just wrong in some marginal way. As a historical account of American constitutional structure, it is collapsing under the weight of the evidence. And the task now is not simply to produce still more evidence, though more will surely come. The task is to change how we talk once the evidence is in.

I’ve had this exchange running with Michaeljit Sandhu that relates to Law and Political Economy. He’s trying to salvage faith in the institutional agnosticism that has defined the left for generations. That’s precisely what the faith that my work is meant to target. I look at the left (broadly construed) and see a kind of opportunism. The left uses power where it can find it within the American system. As I’ve described, I draw from a different theory of change rooted in reconstruction politics.

Reconstruction politics aren’t about policy. They’re about redefining who gets to wield state power. Because the semiotic structure of my brain is rooted in cinema, I wanted to explain myself through the lens of the classic The Bridge Over the River Kwai, which I regard as sitting at the center of an LPE cinema canon.

Kwai is a tragedy about a man who loses his connection with his objectives because of an institutionalist mindset. The film is centered on British Colonel Nicholson, played by Alec Guinness. The first half of the film fakes you out with a sort of rule-of-law drama. Nicholson, who has been captured along with his men by the Japanese military, refuses to build a bridge for his captors because they are ignoring the Geneva Convention’s prohibition on compelling officers into manual labor. A struggle with the Japanese ensues and Nicholson prevails.

Then the film turns into a tragedy.

Once the Japanese fold and agree to abide by the Geneva Conventions, Nicholson sets out to build the bridge with gusto. He’s going to make sure this thing is a triumph. It will symbolize English discipline, martial prowess, and determination. That Nicholson is building a bridge that will ultimately further the Japanese’s military objectives is lost. Nicholson has a sort of institutionalist vibe. He is going to pursue discipline and honor as ends in themselves.

A B-plot follows an American POW who escapes and is compelled to join a commando unit’s attempt at blowing up the bridge. These guys are portrayed in a completely different light from Nicholson’s romantic institutionalism. They’re brutal and follow a simple theory. The bridge will be used by the enemy, so they’re going to blow it up.

Eventually, the commandos reach the finished bridge and try to blow it up. Nicholson realizes at the last moment that he’s accidentally become a sort of collaborator with the enemy. Just before the movie ends, he collapses on a remote, blowing up the bridge.

What does this have to do with a debate about constitutional politics? The folks who favor institutional agnosticism remind me a lot of Nicholson, whose sin was his failure to stop and ask about the consequences of his actions.

As I’ve said a lot, the last half-century of American political development has been defined by an accommodation between presidentialism and juristocracy. This is the project of the right, of the forces of reaction and hierarchy. They’re building a state that can serve as the embodiment of one man’s will (at least in theory). And because of the accommodation, they don’t have to formally dispense with legality. The official story is that the tribune-like presidency is the command of the Constitution and of history.

Now that sounds like a strangely legalistic fascism to me. I think in the ongoing policrisis, we need to radically restructure power in a way that the left (broadly construed) hasn’t attempted in generations. That’s why I draw on reconstruction politics. Like the Radical Republicans after the Civil War, I think your only way out is to take on the accommodation. Specifically, my pitch depends on recentering ourselves on legislative politics and legislative supremacy.

So far, I have a pretty identifiable base of support within LPE circles. Sam Moyn and Sabeel Rahman are on board. But I’ve gone a step further and identified a project of what I call radical reconstruction. See, I don’t really think that investing in Article I is enough. I think you have to deconstruct the credibility of the tribune-like presidency and the juristocracy. Like Rahman, I embrace the duality of reconstruction politics. Reconstruction alone doesn’t work. You must deconstruct hierarchy before you can leave democracy in its wake.

In other words, when I look on the accommodation, I see an enemy bridge.

Sandhu rejects this whole project, not just radical reconstruction but also the slightly more moderate proposal from Rahman. Sandhu’s preferences sound like the “policy state” to me. He thinks we ought to opportunistically pursue what we want without some overarching theory of which institutions ought to wield power.

That reminds me a lot of Nicholson.

Take Amy Kapczynski’s work on industrial policy. Amy writes about a major state-building project that would require new federal agencies to direct a more effective and democratic industrial policy. It’s a great law review article. But it could go sideways if you don’t play the game of constitutional politics.

Imagine there’s a major sweep in 2028 that elevates a radically progressive coalition. The head of that coalition builds the industrial policy institutions Amy wrote about. We get four or eight years of phenomenal industrial policy. Eventually, the GOP comes back into power.

As I have written about more than once, MAGA has effectively killed the politics of the twentieth century. Because of accelerating presidentialism (which has been blessed by the Supreme Court), we’re witnessing the unilateral shuttering of agencies, the coopting of institutional mandates, and broad and abusive treatment of civil servants. MAGA politics has managed to cripple American state capacity while still centralizing power on the presidency.

Now in our hypo, the minute the reactionaries come to power, they can use the warrants they gathered in the second Trump Administration to either destroy or coopt Amy’s industrial-policy bureaucracy. The magic trick was killing conventional American politics. Before, you could work to enact policies and build institutions while safe in the hope that progressive politics was a sort of one-way ratchet. That’s gone. In the personalized state that the right has built, anything you manage to claw out of politics may be short lived.

Any policy-first orientation invites disaster. Progressive politics now requires some reckoning with where authority resides and who can seize it.

We can’t avoid the need for reconstruction. But you have to know which bridge you need to blow up. The unitary executive was built by the forces of hierarchy to accomplish their own ends. It is madness to try and wield what they’ve built and expect no consequences. For me, the entangled accommodation uniting presidentialism and juristocracy requires deconstruction. That’s the bridge.

Sandhu’s institutional agnosticism risks leaving the bridge undisturbed. I never understood why we would let the right define the state to their liking. Say what you want about the right, they’re the only ones who play constitutional politics anymore. And in the vacuum, they have succeeded in setting the terms for how power can be deployed in America.

But it’s even worse. The debate in LPE circles has centered on how much closeted presidentialism there is within our ranks. One of the few places where Sam Moyn and I disagree is on this question. He wrote a few months ago to suggest that I am too optimistic that we don’t have too many closeted juristocrats or presidentialists amongst us. (Sandhu makes me wonder if he was right.)

What’s wrong with institutional agnosticism is that it may actually make the situation worse. People on the broad left have a bad habit of doubling down on the right’s constitutional politics. For example, Reagan’s inroads on building the modern presidency were adopted and furthered by the Clinton Administration. If you have no real commitments in the realm of constitutional politics, the left is always going to be doubling down on the accommodation. The right will keep pushing for the tribune-like presidency. Because the agnostics only seek policy, they will default to the powerful instruments they find. And in the right’s wake, that means the presidency.

This is where Sandhu makes me think of Nicholson from Kwai. Nicholson didn’t probe the consequences of his actions because he had a blinding commitment to a kind of professional role morality. Sandhu doesn’t want to offer an alternative to the right’s constitutional politics because he has an overwhelming desire for progressive policies that will make the world a better place. I think that in both cases you end up building the enemy’s infrastructure. If we’re just doubling down on presidentialism, then we’re building the same tools that will be brought down on us the next time the reactionaries come to power.

Nicholson didn’t just screw up in a haze. He substituted excellence within an inherited role morality for his own judgment. LPE technocrats risk the same mistake when they attempt to wield the state as they’ve found it instead of asking what modes of power they are reinforcing.

The psychological commitments and complexes driving lefties’ agnosticism are just as complex as Nicholson’s professional ethos. First, lefties’ views of politics are wrapped up with the policy state. Earlier generations like the Radical Republicans, the Progressives, and the New Dealers tried to remake the state. But the New Dealers were too successful. They built a rational state capable of cranking out policies that could materially change the world around them. After that, the left forgot its commitments to constitutional politics. Instead, the point of politics was the production of discrete policies. The New Dealers’ success meant that their successors would inherit their tools but were doomed to see them as the neutral machinery for pumping out policy. MAGA killed the policy state as we knew it, but we still think in its register.

Second, people still have an unhealthy preoccupation with FDR and the New Deal. The idea of a personality driven regime-change president is unendingly attractive. But the problem is that the model has broken down in an age of hyper partisanship and thermostatic elections. You do not get the sweeping and durable majorities anymore that might allow a charismatic president to reconstruct the state. There are reasons why we haven’t had another FDR in the better part of a century.

In the end, you have to know and be able to see when you need to blow up the bridge. The modern presidency (to say nothing of the juristocracy) is in irreconcilable conflict with LPE’s stated democratic aspirations. The tribune-like president is the boss, the head of house, the master. This is a vision of hierarchy made manifest. That’s why Russell Vought is attracted to it. The modern presidency allows him to reach into the state and pluck out anything he dislikes. It also lets him try to unilaterally reinforce old hierarchies. That’s the bridge.

Institutional agnosticism is never neutral when the available institutions have already been shaped by reactionaries. Opportunism just reinforces machines our enemies built for their own ends.

Today, the LPE Blog ran a piece by Michaeljit Sandhu responding to my own work on the Blog. Sandhu rejects my call for legislative primary in favor of institutional agnosticism. I found the blog post sharp but unsatisfying.

Every significant reconstruction moment in American politics, save one, adopted a specific program of what I have called “constitutional politics.” Reconstruction Republicans, the Progressives, and the New Dealers all tried to remake the state on more favorable terms.

They were almost too successful. After the New Deal, left-of-center Americans looked on their work in awe like they were in a Byron poem. They saw a rational state capable of delivering policy that could itself change the world. Constitutional politics was replaced by policy and institutional agnosticism. The goal was no longer a fundamental reordering of the American state.

That’s where the exception comes in—the Rights Revolution. Various entities within this epoch were agnostics. The civil rights movement played every slot machine: presidential, administrative, legislative, and judicial. In the process, the rights revolutionaries created a juristocracy that would, in due time, undo all of their work. In the infamous Powell Memo, a future juristocrat advised a nascent neoliberal coalition that they ought to seize on the fruits of the rights revolutionaries’ agnosticism by capturing the Court. Today, we live with the consequences.

Modes of governing authority never sit still. If you play at their games, you generate warrants on authority that you will not be able to control. Saying you want to be institutionally agnostic reminds me of a kid saying he wants to grow up to be a lawyer, a doctor, and a rocket scientist. These are different games. How they interact is contingent in the extreme. And in constitutional politics, not every game abounds to democracy’s benefit in the long run.

I think for Sandhu’s post to work he had to have tackled two interrelated points: (1) some modes of governing authority will in the long run tend to entrench hierarchy and (2) agnosticism reifies the power of these modes. Eg, it is suicide to put your chips down on juristocracy if it abounds towards conservative outcomes in the long run.

The Rights Revolution gives us the bounty of institutional agnosticism. You end up strengthening institutions that are set against the left and reconstruction. In the process you destabilize whatever you managed to accomplish.

Sandhu is surely right that Congress is no democratic Eden. It has repeatedly entrenched hierarchy, frustrated reform, and disappointed progressive aspirations. But this observation does not eliminate the need for an institutional theory. It simply sharpen it.

The problem is that institutional agnosticism is not itself an alternative. Every political movement eventually confronts questions about where governing authority should reside, how political victories should become durable, and which institutions ought to exercise final responsibility for democratic decisionmaking.

Refusing to answer those questions does not transcend institutional politics. It merely leaves intact the constitutional settlement we already have.

(Here it is important to remember that an LPE history of the last sixty years or so tells us that our current settlement was shaped to a tremendous degree by forces set against effective democracy. Why concede to the game they have constructed for us? Why do we think we are immune from the constitutional politics that the right wields so effectively?)

For nearly half a century, American government has operated through what Karen Orn and Stephen Skowronek described as the policy state: an order in which policymaking increasingly migrated away from legislatures and toward presidents, administrators, courts, and diffuse networks of governance. Executive discretion expanded as Congress was sidelined by an accommodation between presidentialists and juristocrats. Administrative agencies accumulated greater responsibility for national policymaking while becoming increasingly vulnerable to presidential control. Courts assumed a more prominent role in supervising administration and resolving political conflict. The result was not the disappearance of politics but its relocation.

Today, that settlement appears exhausted.

The policy state promised flexibility, expertise, and effective governance despite legislative fragmentation. Instead, it has produced escalating presidential unilateralism, constitutional hardball, judicial management of national policy, and administrative instability that leaves fundamental questions of governance swinging dramatically with each electoral cycle. Presidents increasingly govern through emergency declarations, aggressive statutory interpretation, and administrative improvisation. Courts increasingly determine the boundaries of public policy.

These are not isolated pathologies. They are signs of developmental exhaustion. The old order is not working. And no wish list of policy objectives can fix that.

Institutional agnosticism therefore risks becoming profoundly conservative. By declining to articulate an alternative architecture, it defaults to preserving one that has already ceased to function well.

No plan is not an alternative to a plan. The existing institutional order already embodies a theory of governance. The only question is whether we intend to replace it.

This is where legislative primacy enters the conversation. Properly understood, it is not a romantic celebration of Congress as presently constituted, nor a denial of Congress’s reactionary history. It is a reconstruction project aimed at replacing a failing constitutional settlement. Its claim is comparative rather than absolute. Every institution has disappointed democratic aspirations. The question is which institution is best positioned to convert democratic mobilization into durable public authority.

Congress remains uniquely situated to perform that function—not because legislators are wiser than presidents or judges, but because legislation institutionalizes coalition-building, public bargaining, and democratic accountability in ways executive governance cannot. Durable political settlements are rarely produced through unilateral administration. They emerge from legislative reconstruction.

Indeed, history points in precisely this direction. Reconstruction, the New Deal, the Great Society, and the Civil Rights Revolution all required strong executive leadership. But none became durable because presidents acted alone. Their achievements endured because they were translated into legislative settlements that reshaped the structure of American government itself. Executive action may catalyze constitutional transformation. It rarely completes it.

(The Trump Administration is a cautionary tale about what happens when a president with big ambitions meets a political movement with no sense of legislative politics.)

Sandhu asks why Congress deserves pride of place. The better question is what institutional project should succeed the policy state.

If the answer is simply that reformers should use whichever institution is presently available, then institutional agnosticism offers little guidance at precisely the moments when constitutional politics becomes most consequential.

It cannot tell us whether courts should entrench reform, whether presidents should bypass legislatures, or whether administrative governance should substitute for democratic lawmaking. It resolves these questions pragmatically only by leaving existing institutional distributions of power largely intact.

The central issue, then, is not whether Congress has failed. It plainly has. The central issue is whether the institutional order built around presidential administration and judicial supervision has succeeded where Congress faltered. After decades of executive and judicial aggrandizement, administrative instability, and declining democratic legitimacy, that answer increasingly appears to be no.

The debate over legislative primacy is therefore not a nostalgic dispute about Congress. It is a debate about what comes after the policy state. And if the existing constitutional order has reached the limits of its developmental capacity, refusing to propose a successor is not institutional humility. It is acquiescence.