Among Yale Law students and alums, there is a familiar, loving question. Does anyone learn anything about the law at YLS?
Famous for its brilliant and groundbreaking law teachers, when I was a student there my friends and I joked that we learned more about the theory of torts than about tort law, more about the theory and philosophy of contracts than about what is required to make a binding agreement, and more about various theories of constitutional interpretation than about the intricacies of the Constitution itself.
All of that came back to me when I read what JD Vance said about the role of the Supreme Court during a podcast with Ross Douthat on May 21. Vance reported that “I saw an interview with Chief Justice Roberts recently where he said the role of the court is to check the excesses of the executive. I thought that was a profoundly wrong sentiment.”
Wrong to say that the Court should do what it can to check the “excesses of the executive.” How could a lawyer say such a thing?
Could it be Yale Law School’s fault?
Before looking more closely at Vance’s comments, let me say a bit about what every student surely learns at Yale.
First, there is this thing called the separation of powers and checks and balances. Recall what Madison said in Federalist 51, “[T]he great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack.”
And then there is Federalist 78’s defense of judicial review. What Hamilton said about the role of the courts in relation to legislative power surely applies to the executive as well.
“[T]he courts,” he wrote, “were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning….”
Hamilton’s view became part of the constitutional canon when, in 1803, in a case involved an abuse of power by an executive branch official, Chief Justice John Marshall explained that “where a specific duty is assigned by law (to someone in the executive branch), and individual rights depend upon the performance of that duty, it seems equally clear that the individual who considers himself injured has a right to resort to the laws of his country for a remedy.”
And then making it perfectly clear that the courts have the final say on constitutional questions, Marshall penned this famous line: “It is emphatically the duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret the rule.”
In February, Vance first seemed to challenge Marshall when he posted on X that “Judges aren’t allowed to control the executive’s legitimate power.” In response The Bulwark’s Kim Wehle wrote, “For non-lawyers, or for anyone else who hasn’t thought about high school civics for a while, the notion that courts shouldn’t butt into the president’s business might seem to make sense.”
“Federal judges,” she continued, “aren’t elected; they are appointed for life. The president, though, is the nation’s top law enforcement official, and appoints the attorney general, who decides which cases to prosecute and which to decline…. To allow courts to interfere in such business, Vance cynically suggests, is intolerable and unconstitutional judicial overreach.”
But Wehle calls Vance’s post “grossly misleading—if not patently false—and he knows it.”
Then she reminds us that surely Vance “learned about the proper role of the federal courts at Yale Law School in his first-year constitutional law class. (And if he didn’t learn it, he should ask Yale for a refund and maybe should mail back his diploma.)”
Wehle to the contrary notwithstanding, Yale is safe; it does not have to send Vance any money.
His erroneous opinions about the authority of the courts are not born out of ignorance. They are more dangerous than that.
You can bet that Vance heard Marshall’s line at Yale Law School. In any constitutional law class there, he would have read Marshall’s Marbury v. Madison opinion before his constitutional law teacher expounded their own way of interpreting the constitutional text. And along the way, he would have read myriad cases in which the courts and/or the Supreme Court checked the “excesses of the executive.”
Among them are Ex parte Merriman (invalidating President Lincoln’s suspension of the writ of habeas corpus), Humphery’s Executor v. United States (limiting the president’s power to remove members of independent regulatory commissions), Youngstown Sheet and Tube v. Sawyer (the Supreme Court said the president did not have the authority to seize steel mills during the Korean War), and, most importantly in light of Vance’s latest comments, Hamdi v. Rumsfeld.
In that 2004 decision, the Court ruled the “Fifth Amendment due process guarantees give a citizen held in the United States as an enemy combatant the right to contest that detention before a neutral decisionmaker.” It “rejected the government’s argument that the separation-of-powers prevents the judiciary from hearing Hamdi’s challenge.”
Sound familiar?
Back to what Vance told Douthat. He accused “a small but substantial number of courts” of “making it very, very hard for us to deport illegal aliens.” Then, Vance issued an ominous warning. “I worry that unless the Supreme Court steps in here, or unless the District Courts exercise a little bit more discretion, we are running into a real conflict between two important principles in the United States.”
“Principle 1,” Vance conceded, “is that courts interpret the law. Principle 2 is that the American people decide how they’re governed. That’s the fundamental small-d democratic principle that’s at the heart of the American project. I think that you are seeing, and I know this is inflammatory, but I think you are seeing an effort by the courts to quite literally overturn the will of the American people.”
Here he fell back on something surely heard about at Yale Law School and seemed to be channeling Alexander Bickel, one of its greatest constitutional law scholars. Bickel worried about what he called the Supreme Court’s “counter-majoritarian” difficulty, and he counseled judicial prudence because of that difficulty.
Maybe that’s why Vance urged Chief Justice Roberts to focus less on the president and more on checking “the excesses of his own branch.”
Upping the ante, Vance argued, “You cannot have a country where the American people keep on electing immigration enforcement and the courts tell the American people they’re not allowed to have what they voted for. That’s where we are right now.”
I suspect that these are more than Vance’s own Yale Law School-like musings about the philosophy behind the separation of powers. And what he told Douthat gave was a hint of that.
While denying that this concern about court rulings in deportation cases is rooted in hatred of migrants or “grievance,” he explained, “I really do think that social solidarity is destroyed when you have too much migration too quickly…. I’m trying to preserve something in my own country where we are a unified nation.”
There it is. A desire for unity and solidarity, confronting the threat of “too much migration too quickly.”
The fact that the vice president didn’t seem to object to the Trump administration moved heaven and earth to allow fifty-nine white South Africans to come to this country suggests that it isn’t migration per se that Vance thinks is the problem. It is more a question of who the migrants are and what they look like.
Beyond what Vance said about courts in his conversation with Douthat is a vision of an American with no more “melting pot,” no more “e pluribus unum.”
He surely didn’t learn that at Yale Law School.
