Earlier this month I participated in a Supreme Court term wrap-up event at the National Constitution Center (co-sponsored by Texas A&M's Center for the Structural Constitution). On a separate panel, Georgetown law professor Steve Vladeck suggested the Supreme Court's failure to confront and constrain the Trump Administration amounted to appeasement, and to be sure no one missed the point, he compared Chief Justice Roberts to Neville Chamberlain. According to Professor Vladeck, the best defense that could be made of the Supreme Court's repeated grants of emergency relief to the Trump Administration was that the Court was avoiding a messy confrontation between Article III and Article II -- a confrontation that the judiciary would likely lose.
Some may well ascribe the Court's actions to prudential judgments about when and whether to assert judicial authority to constrain the executive branch. I think a better explanation for the Court's behavior is that a majority of the Court is keenly aware of the limits on federal court jurisdiction and remedial authority, and is properly concerned that lower courts have been too quick to transgress such constraints. Put another way, a majority of the Court largely accepts formalist constraints on judicial power and rejects the proposition that the proper response to executive branch overreach is for the judiciary to respond in kind.
I expand on this point in my latest Civitas Outlook column, "Mistaking Principle for Appeasement." Here's a taste:
