Professor Steve Vladeck has responded to my Civitas Outlook column and blog post suggesting he has wrongly characterized the Supreme Court's principled formalist jurisprudence for appeasement of the Trump Administration. He claims my criticism of him is "misdirected," my defense of the Court relies on "cherry-picking," and that my defense of the Court is incongruous because one cannot defend the Court for being principled if it does not articulate its principles. He further critiques a New York Times op-ed by Adrian Vermeule which makes some arguments parallel to mine, but which also endorses a more radical response than I have endorsed.
For reasons I will briefly explain below, I stand by my prior assessment in every respect, including the qualifications I have already noted. I also believe much of Vermeule's critique of district courts is well taken. I part company with Vermeule, however, when he suggests that district court overreach and a departmentalist view of the Constitution justify outright defiance of court orders.
Vladeck's first complaint is that my criticism of his accusation that the Court is engaged in "appeasement" worth of comparison to Neville Chamberlain is "misdirected" because he was merely responding to and characterizing claims by others. However Vladeck may have framed his claim elsewhere, I do not think that is a plausible characterization of his remarks at the National Constitution Center which prompted my column. In those remarks, he made clear that the is "no other way to describe what the Court is doing in these cases" in terms that can be summarized as "appeasement" and that "at least some members of the Court may not see themselves as, but are very much acting like, Neville Chamberlain." But don't just take my word for it; roll the tape.
