Judicial vs. Executive: Preventing a King

Prefer to read? Check out the Audio Transcript

Although the transcription is largely accurate, in some cases it may be incomplete or inaccurate due to inaudible passages or transcription software errors.

Zachary Karabell: Jeff, what’s one constitutional principle you wish more people understood?

Jeffrey Rosen: The separation of powers.

Zachary Karabell: What Could Go Right? I’m Zachary Karabell, the founder of The Progress Network, joined as always by Emma Varvaloucas, the executive director of The Progress Network.

And What Could Go Right? is our weekly podcast, which you likely know because you are listening to it.

It is when we discuss big topics of deep and profound and lasting import with deep and profound and lasting people. I mean, I guess no one is really a lasting person. We all live and die, but you get the general point, and we do try in this podcast to look at things from. Everybody says they’re nonpartisan. That is actually not our shtick.

Our shtick is to try to look at things from a more constructive angle. In a world where dyspeptic dystopian despair seems to be the coin of the realm, both in social media and in politics, and in whatever passes for the public square of debate, even though there’s a lot going on at any given moment that is more sober, serious, and thoughtful, more judicious.

And I use the word judicious right now because we’re gonna have a conversation today about the judiciary and the Constitution. We have on an earlier podcast on an episode about the nature of the judicial branch and the degree to which in the second season of the Trump show, the role of the Supreme Court and the judiciary writ large has assumed a particularly prominent place as an adjudicator of multiple questions of executive authority, congressional oversight of it and and where that balance constitutionally ought to exist. But what is fascinating about the reality of the judicial branch and the Supreme Court in particular, is how on point it often is and how non-ideological it often is.

There are clearly exceptions to that. Not every justice falls into that matrix as neatly as perhaps they should. But what is startlingly, and I think refreshingly positive about the judicial branch is the degree to which many, and many, and many justices at every level of the federal, and also of course state judiciaries, are really thinking in terms of the larger principles of law and the constitution and the appropriate balance of powers, and not simply reacting from some sort of knee jerk, moralistic, and or partisan perspective.

So who are we going to speak with today, Ms. Varvaloucas?

Emma Varvaloucas: Today we are gonna talk to Jeffrey Rosen. He is the president and CEO of the National Constitution Center, where he hosts we the People, which is a weekly podcast featuring constitutional debate. And for those who are unaware, the center is actually a hub for non-partisan constitutional education and debate. So if you wanna be a part of that, you can go over to their website and learn all that you can learn about the constitution.

He’s also a professor of law at George Washington University Law School, a contributing editor at The Atlantic and has written several books. He has a new book coming out soon called Pursuit of Liberty, and another one that you may have heard of that he has written is called Conversations with RBG: Ruth Bader Ginsburg on Life, Love, Liberty, and the Law.

So are we ready for Jeffrey Rosen?

Zachary Karabell: We are indeed.

Jeffrey Rosen. It’s a pleasure having you on What Could Go Right? I’m looking forward to a wide ranging discussion about the nature of the American government and our system and the Constitution, and maybe as a perfect utter softball question, because most people will not know exactly what the National Constitution Center is, what it does, how it came to be. Please if you would give us a little primer about what it is and what your role is.

Jeffrey Rosen: The National Constitution Center is indeed the only institution in America chartered by congress to increase awareness and understanding of the Constitution on a nonpartisan basis. It was founded by Congress during the Bicentennial of the Constitution in 1987, and we bring together liberals and conservatives to explore areas of agreement and disagreement about all areas of the Constitution.

It’s located on Independence Mall in Philly, across from Independence Hall. If you haven’t been there, come see it. It is the most inspiring constitutional view in America to gaze out on Independence Hall under the words of the First Amendment, which are 70 feet high and 50 tons of marble. And there’s a statue of, a hall of statues of the signers and live theater and the rarest original copies of the Constitution and Bill of Rights.

It’s, it’s constitutional heaven for people who wanna learn about the constitution. In addition to this incredible physical space in Philly, we’re also an amazing online platform. We have an interactive constitution that’s gotten 90 million hits since we launched and is now among the most Googled constitutions in the world.

And it brings together the leading liberal and conservative scholars and judges and thought leaders in America to debate every clause of the Constitution. So you can click on the habeas corpus clause and find justice Amy Coney Barrett and Neal Katyal with a thousand words about what they agree the clause means, and then separate statements about what they disagree about. Multiply that by 160 clauses, and it’s just extraordinary to see the range of debate. We have a constitution one-on-one class for high school kids. This is also great for learners of all ages. We just launched a version with Khan Academy. It’s all free and you can learn about the essence of the Constitution, free and online, from the greatest law professors in America, liberal and conservative.

I host this weekly podcast, We the People, which debates the constitutional issues in the news and throughout American history. And then we just have these programs and podcasts both in Philly and around the country that bring together great historians to debate the American idea.

And for America 250, we’re launching a civic toolkit. I’m so excited about the incredible group we’ve convened. Danielle Allen on equality, the great Gordon Wood on government by consent. Robbie George on liberty and more. Akhil Amar is gonna annotate the entire Declaration of Independence clause by clause. So you can see the historic antecedents of the list of grievances and all this is gonna be free and online as well. And we’re gonna take it across America. So it is just the most exciting, inspiring, and meaningful place for learning about the Constitution, and you gotta check it out.

Emma Varvaloucas: What do you find the public appetite for that is like? I feel like the judiciary branch in particular is having a, a bit of a moment in the sun right now with the news cycle, but outside of the news cycle, I’m curious how many people are like, you know, I really wish I could brush up on my constitutional principles.

Jeffrey Rosen: Absolutely our, our motto is Bad for the country, good for constitutional debate. So it’s definitely the case. The web, the web traffic really hits the roof during moments of great national polarization. During the election of 2020, the numbers were something like 500,000 hits a day for the attractive constitution.

People Google stuff. A lot of it is news driven and search driven. The podcast numbers are excellent, about a hundred thousand listeners a month who are willing to geek out on these issues and take an hour to really hear the arguments on both sides. And, and most significantly at all, I just find it so moving to travel across America and see the hunger there is in all areas red and blue, rural and urban, for deep learning about American history and the Constitution.

I’ve been going around talking about my new book on the Pursuit of Happiness and the ancient moral philosophers who inspire the founders and had one moment in Elkhart, Indiana, where a guy called Frank Martin convened 500 people in a local church first to talk about the pursuit of happiness, and then to meet for another 12 weeks and take our Constitution 101 class, and then I zoomed in at the end. These are adult learners all over 50. And just real lifelong learners and, and willing to, to go deep about American history and the Constitution.

So I know these are, these are polarized times. People are so divided about politics, but I can attest that there is a deep hunger and desire to learn at all ages, and it makes me optimistic about the future of the American idea.

Zachary Karabell: So are you finding in the past months of 2025, where that polarization seems, if it was even possible to seem more acute than it was, it, it seems more acute than it was.

Are you finding that there is commensurate more hunger for actually looking at what does the Constitution say about balance of power, separation of power as the judiciary?

Jeffrey Rosen: Absolutely. And of course we’re engaged in a, a, a serious debate in this country about what the Constitution means. There are some that the rise of presidential power in particular has created the equivalent of the American Caesar, who the founders feared. I have a new book that’s about to come out, the Pursuit of Liberty, how Hamilton versus Jefferson ignited the lasting battle over power in America.

And it begins with a dinner party where Hamilton and Jefferson are sitting around. Jefferson says, the greatest men in the world are John Locke, Francis Bacon, and Isaac Newton. And Hamilton pauses and says, the greatest man in the world was Julius Caesar.

And, and this convinces Jefferson that Hamilton wants to create a monarchy bent on corruption and he founds the entire Democratic Republican party in opposition to the perceived Caesar of Hamilton. But in fact, it was misinformation. Both Hamilton and Jefferson are devoted to preventing an American Caesar. They fear that they found one in Aaron Burr, and the whole constitution is designed to prevent the president from amassing so much power that he is the equivalent of a, of an elected despot.

Now it’s too soon to tell whether or not our current presidents in general and President Trump in particular are indeed versions of the Caesar the founders feared, or whether President Trump is more like Andrew Jackson, a a, a populist who’s using executive authority to advance his particular vision of liberty.

People are understandably eager to debate that question. It makes learning about history all the more important to look at the precedents when we fear the consolidation of power before like this. And really the only way productively to move forward is to debate and study these issues from a historical, unconstitutional perspective.

And I think people of all perspectives are really eager to do that.

Zachary Karabell: Of course, as you know, Jeff, the Imperial presidency, which is a phrase coined by Arthur Schlesinger decades ago, has nothing to do with Trump. I mean, there’s been this concern really with the New Deal, but particularly after World War II, that the executive branch has become more and more powerful relative to both the judiciary and the legislative branch.

And there have been various claxons of alarm raised over the past decades that this is shifting the constitutional balance in a way that was not intended and yet continues. And some of that had to do with the Cold War and the kind of the war footing standing army, the national security part of the presidency.

And some of it had to do with the expansion of the administrative state. I wonder where you feel this is going. I mean, you just alluded to, we don’t know yet whether this is a kind of Jacksonian populist moment that will fade or a structural shift. I think the question people really have, which you’re really well placed to answer, is, is there a corrective mechanism within the Constitution that would sort of be an outer limit? Or is this really about what people in places and positions at any given moment, delineate?

Jeffrey Rosen: Well, that’s a great question, and you described very well the evolution of the modern presidency into that imperial presidency in a way that has raised questions about whether the founder’s structure has been distorted beyond recognition. Um, you began by asking me what people should know more about, and I, I said the separation of powers, because that was the structural principle that the founders relied on to prevent an imperial presidency and a king from amassing all power and threatening the republic.

Are, are there self corrective mechanisms to make the separation of powers robust? No, they’re not. Each, each branch has to assert its own authority, and in addition to the swelling of presidential authority, ever since the beginning of the 20th century, many date the crucial election back to 1912 when both Theodore Roosevelt and Woodrow Wilson embraced the vision of the president as a steward of popular will. Only William Howard Taft, my unsung hero defends the founder’s vision of a, the kind of chief magistrate who’s administering the law but not embodying popular will.

But, but ever since 1912, we, we’ve had this increasingly populous presidency amplified by technology and particular social media and by party polarization and, and that’s been accompanied by a shrinking of Congress’s willingness to do its job and exercise independent judgment and assert its powers and check the presidency and its congressional delegations of vast swaths of authority to the executive has been a, a, a voluntary surrendering of power in a way that the founders couldn’t have anticipated.

The judiciary has become far more robust than either Hamilton or Jefferson anticipated. But it, uh, it’s, it’s embracing recently a vision of so-called executive or the Unitary Executive Theory, which although it’s attributed to Hamilton, is arguably being asserted in a way that Hamilton himself would’ve recoiled from.

So, so those two factors have combined to support broad assertions of presidential authority in a way that’s not self correcting. But the other thing that’s crucial is the people and, and the founders thought that civic education and particular civic virtue was necessary and that citizens had to do two things.

They had to learn about the principles of government and the habits of civil dialogue. And George Washington and his farewell address says the republic will fall unless citizens learn about those two things, the principles of government and the habits of civil dialogue. The principles of government are the separation of powers.

So in other words, unless citizens understand why it’s important not to allow one branch to amass all the power, even when they like the president who’s exercising that power, and then unless they learn how to disagree without being disagreeable, to listen to the other side, to treat each other as civic friends rather than enemies. Then we descend into polarization and like the citizens of Greece and Rome, then we surrender power to would be strong men.

So that was the lessons of history and unless ultimately citizens insist on keeping the Republic, then it will fall.

Emma Varvaloucas: Jeff, you mentioned before that you’re essentially leading by example, right, vis-a-vis the habits of civic dialogue on the podcast where you have people come on and you debate both sides. I’m curious if you’d be willing to give us an overview. It can be like a hot constitutional topic in the news, or a hot constitutional topic to Constitutional scholars and not hot to anyone else.

Something where you, you really feel like you can give us a SparkNotes version where listeners would really benefit from understanding that one, there is, there are both sides to an issue and what those both sides are.

Jeffrey Rosen: Absolutely. Great question, and I can just give two examples of recent podcast topics that changed my mind about what the Supreme Court is likely to do about these executive orders. We did the tariffs recently, and it was very striking that both the conservative and the liberal guest, the conservative, was Steve Calabresi, the founder of the Federalist Society, and the liberal guest was a leading administrative law scholar from NYU.

They both agreed that the Supreme Court should and, and may indeed strike down the tariffs, that the statutory authority that President Trump has invoked to support emergency power don’t remotely begin to support the tariffs. They, historically and textually, it’s just not a strong argument, and, and they both thought that eventually the tariffs will fall.

That was really interesting to learn by contrast, the podcast about DOGE, which involved a really distinguished conservative and liberal administrative law scholars suggested that the delegation of Congress to the executive might well support DOGE, that Elon Musk was not at the time exercising the authority of an administrative agency, but was acting as a presidential advisor and for that reason was not likely to violate the non-delegation doctrine or the major questions doctrine, which are the two big geeky doctrines that the Supreme Court has invoked to say Congress can’t give the president too much power when it does, so without clear standards.

More to say about all that, but just, just hearing. Both sides on both of those issue convinced me that one question, the tariffs is much more likely to be stopped by the court than the DOGE issue, and you really have to go week by week and issue by issue to get a sense of those things.

Broadly what struck me is that because this court is sympathetic to strong unilateral executive authority and does think the executive should have really broad authority to fire and control people within the executive branch, this court is likely to be far more indulgent of the firings and the assertions of presidential control over executive authority, than it is over efforts not to spend congressionally appropriated money. So that’s called impoundment and efforts by the administration not to spend money that Congress has allocated are more likely to fall than efforts to fire the heads of agencies.

There is this big question about whether independent agencies themselves are constitutional. This involves the question of whether a case called Humphrey’s executor that the Supreme Court decided in the 1930s should be overturned. And I have behind me, Louis Brandeis, one of my heroes, he wrote the Humphrey’s executor case upholding independent agencies on the grounds that the founders sought not efficiency, but liberty. And therefore they wanted to enforce the separation of powers. And in order to prevent all power from concentrating in the president they created, they would’ve allowed independent agencies to check the president.

So Brandeis is saying, even though independent agencies might not have existed at the founding, the principle that supports them is consistent with the separation of powers. He was a big Jeffersonian and he exalted Jefferson as the apotheosis of liberty. By contrast, these are my various heroes are kind of battling against each other. Chief Justice Taft who as president favors strong executive authority writes an opinion in a case called the Myers case where he says the president has to have total control over the executive branch within its constrained lane. Not that he should be able to ex exercise judicial, or congressional power, but that he should be able to fire executive branch officials.

So this is the big question that this Supreme Court’s gonna have to decide. Was Brandeis right, and should Humphrey’s executor be maintained? Or was Taft right? And should Humphrey’s executor be overturned, which would call into question some, if not all independent agencies.

In, in its radical form, it would call into question the constitutionality of the Federal Reserve and the FCC and all the agencies. In its less a strong form, it might allow the president to fire some watchdogs embedded within the existing agencies, so, you know, a lot turns on the details. But all this is to say, this is maybe the biggest constitutional question the court will confront next fall when it’s gonna hear the case about the independent agencies and whether Humphrey’s executor should be overturned.

I don’t have a strong sense about what the court’s gonna do. It’s, it’s not clear what a majority of the court wants to do, but, but that’s just a big case that the court will have to decide whether or not a constitutional arrangement that has been accepted since the New Deal era where it will continue.

If, if, if I can have one more beat, you know, broadly that this question of whether the entire New Deal solution, which was broadly deferential to executive power and executive agencies should be questioned, is up for grabs, or whether these doctrines like the major questions, doctrine, and the non-delegation doctrine, which have been dormant since the New Deal, should be resurrected to prevent Congress from delegating vast swaths of authority.

Liberals had feared that before President Trump ’cause it seemed to call into question. Regulations by the Environmental Protection Agency and, and the, and the Federal Trade Commission. Now though the non-delegation doctrine is being invoked to prevent President Trump from claiming executive authority that Congress hasn’t clearly delegated and to say, for example, on immigration that if Congress hasn’t spoken clearly that he, he can’t deport people without clear statutory authority.

So, so here it may end up checking the executive. I hope that wasn’t too geeky, but it, it suggests that in addition to this big debate about whether presidents are amassing too much power, there’s a vigorous debate on this Supreme Court about how far to go in allowing the consolidation of executive power, and that’s gonna play out over the next couple of years as well.

Zachary Karabell: No, no. Geeky is good. We like geeky.

Excellent. So a couple of things. One, a shout out to using the word apotheosis. I think any podcast where that word gets used is already a victory in and of itself. Two, it is fascinating and, and we don’t yet know it where it’s gonna go on this current Supreme Court. There is this inherent tension between, some sympathy toward whether it’s presidential immunity or unitary executive on the one hand, but also a really strong animus toward what many on the court, most notably Gorsuch feel is administrative overreach. Right? And those two things have always struck me as in kind of radical tension with each other, which is, on the one hand you want a unitary executive, but you don’t want the unitary executive to have the power that the executive has had. So in, in many ways, I think people are underestimating the kind of crosscurrents here, and we’re seeing one play out radically and rapidly in the first months of the second season of the Trump show, which is the, the consolidation of executive authority.

We haven’t really seen the next phase or pushback, which is likely to be within the court because there’s a strong, whether it’s the major doctrines question or just this belief that everything from administrative courts, you know, ruling on administrative actions to just regulation in general.

During the New Deal, at least my read and into the fifties, the Supreme Court was quite willing and did quite frequently strike down either congressional delegation of authority to the presidency or the presidency’s use of powers. So like, Youngstown case in 1952, Supreme Court says, Truman can’t you know, seize steel mills. The National Labor Relations Act is ruled unconstitutional. A whole series of New Deal laws are ruled unconstitutional, which is what leads Franklin Roosevelt to rail against the court in 1936 and do this, what has been known as the court packing scheme that fails.

I try to remind people that for all the rhetoric of the Trump administration toward the court today, that people should go back and listen to what FDR was saying about the court then. I mean, it’s not as if this is a new, that too is not a new tension, but I wonder why the court has been, at least until now, and the tariff case that you alluded to, will be a real test of that somewhat less willing to either strike down legislation saying, yeah, you passed the law, but you shouldn’t have passed that law, or that law wasn’t within your purview to pass, particularly when it comes to delegating authority and less willing to strike down executive action. Although, I guess you could argue in the past few months, the Supreme Court’s been quite willing to halt executive action around the, the process of deportations, not the fact of deportations.

Anyway, I’m just wondering why it feels like there’s been less of that.

Jeffrey Rosen: I think you’re right and you well identify the tension between the suspicion by some justices led by Justice Gorsuch of overregulation and what’s looked so far like a deference to executive authority. Justice Gorsuch is co-chair of the National Constitution Center, along with Justice Breyer. They’re both working with us together to signal their commitment to the importance of nonpartisan constitutional education.

He came to the Constitution Center last Constitution Day to launch his new book Over Lawyered and it’s Jeffersonian payin to the dangers of overregulation and the importance of liberty. So he really is a passionate Jeffersonian when it comes to overregulation. And of course, Jefferson, at least before he became president, was also a, a enemy of executive overreach.

Zachary Karabell: Jefferson before he became president was very Jeffersonian. When he became president, he was much more Hamiltonian.

Jeffrey Rosen: Completely. No, completely. So that’s the, that’s the beauty. Henry Adams’ wonderful history of the US during the Jefferson Administration just sputters with admiration that Jefferson’s total flip flop for embracing the Hamiltonian principles he’d rejected in buying Louisiana and doubling the size of the US and passing the embargo.

And he is just thinks it’s great that that Jefferson has seen the Hamiltonian light, but, but you’re, you’re right that the court hasn’t yet confronted that tension. But it will, it, it may partly just be the cases that it’s taken so far. There’s no doubt that the Trump immunity case was a broad expression of presidential immunity in a way that, at least according to the dissenters, went beyond anything that Hamilton himself would’ve endorsed. Justice Sotomayor noted that Hamilton himself was a tremendous champion of impeachment as a check on executive overreach, and said that with broad immunity, the president is now a king, which was exactly both Hamilton and Jefferson’s fear.

The majority’s response was, we have to prevent presidents from prosecuting their predecessors and for pragmatic reasons, it’s important to create this immunity, but the rubber will hit the road in questions like the tariffs in particular, which is why both of our guests, the liberals on the conservative thought it would, it would be for something like that, that the non-delegation doctrine really might kick in and the, the conservatives on the court would, would reign in executive authority on that ground.

So there are these cross currents in the immigration cases, in the firing cases, and the administrative restructuring cases and so forth. After another year, though, we should see whether these non-delegation and major questions, doctrine will be enough to check the Imperial presidency or. Given the vast statutory authority that plausibly exists and the growth of the use of executive orders by presidents of both parties, whether it won’t be enough.

But the reason it’s so interesting is that we’re seeing something the founders never anticipated, which is a populist, popularly based presidency that rules by executive orders and an effort to translate the founding principles into the modern era is producing these crosscurrents. And we’ll see what the court does.

Emma Varvaloucas: It always makes me nervous when people say that we’re in uncharted waters to a certain extent.

Zachary Karabell: Emma would prefer charted waters.

Jeffrey Rosen: As our president wisely says, we’ll see, and we always will see. So, so.

Emma Varvaloucas: That’s right.

Zachary Karabell: I would like other people to be sailing in the unchartered waters.

Emma Varvaloucas: Yeah. I would, I, I am not a modern day Columbus. I would like Columbus to go out way in front of me, figure that out.

At the risk of getting us totally off track, I cannot resist asking this. Why is William Howard Taft, who I keep wanting to say he was chief justice and then president, but in fact it’s backwards, right? He was president and then chief justice, only guy in history to to hold both offices, I believe. Why is he an unsung hero of yours? That’s the first time I’ve, I’ve heard that statement. I think.

His dream was to be chief justice. He never particularly wanted to be president. I mean, once he was president, he ran for president again because. Every president, no matter how distasteful they find the job, doesn’t, doesn’t wanna lose. So, but his, his life passion had actually been to be chief justice.Poor guy. Poor guy, just ended up with just the presidency, I mean.

Jeffrey Rosen: Huh, well, that that’s a, that’s a, exactly right. And he, he’s an unsung hero of mine, just by happenstance ’cause I, I got him as a homework assignment. The American President Series, which was edited first by Arthur Schlesinger and then by Sean Wilentz, asked me to write about Taft after the previous guy, crumped Lewis Lapham.

The late Lewis Lapham was supposed to write about Taft and found him so dull, I think, that he never took him on. So they turned to me ’cause no one else would write about him. And I was completely captivated by Taft first for the fact that he yearned, as you said, to be chief justice. His dad was a justice, a Supreme Court justice in Ohio, and told him that to be chief justice was greater than to be president.

He’s yearning to be president. He keeps not wanting to even run with Theodore Roosevelt, ’cause he likes being a judge on the court. He refuses to take any Supreme Court appointment that’s not the chief. And then as president, he candidly, when it comes time for him to appoint a chief, justice picks the oldest and most overweight justice that he can possibly get so that the justice will die in time for Taft to succeed him and his timing is perfect. You know, a couple years, a decade later, he’s in private service and he keeps visiting Chief Justice, Edward White, to see how his health is and whether he wants to eat a little more, you know, cake or something like that, just so he can polish him off. Uh, but White won’t die.

And then thankfully for Taft, all of a sudden without warning, white expires and Harding appoints him to take his place. And he loves being chief so much, he says, I don’t even remember I was president. He finds it a kind of heaven. He likes the balanced presiding over thoughtful reason discourse, which for him models the kind of rule of reason rather than passion that he deployed in the executive branch.

But the reason that that he’s a hero, in addition to the fact that it’s great to see him achieve his dream, and he was an excellent chief, his big achievement was first of all, building the Supreme Court building. The court didn’t have one before, and the beauty of that wonderful headquarters signaled its independence as a separate branch.

He was the greatest administrator of all presidents that Henry Stimson, who worked for a bunch of great presidents ever encountered, and his administrative ability created the modern federal judiciary, including the judicial conference and so forth, which sounds geeky, but without good administration, the federal courts couldn’t function as a powerful branch of government, and that was all Taft.

Plus, he gave them the power to hear whatever cases they want, the power of certiorari, rather than having to hear a lot of dull and exhausting cases, and as a result really increased the court’s authority. So that’s him as chief. But if that weren’t enough, Dayenu, as we say, he also was a the last president to embrace this vision of the presidency as a chief magistrate, and he viewed each bill like a judicial.

Decision and would sign it if he thought it was constitutional and not if he thought it was not. He refused to lobby Congress in person, but would send them written opinions in order to persuade them, and he reluctantly agrees to run for reelection when Theore Roosevelt challenges him in 1912 ’cause he believes that Roosevelt is a populist demagogue who’s threatening the judiciary and the rule of law.

And when Teddy Roosevelt starts attacking individual justices by name, much as we’re seeing today and calling for their impeachment, Taft really feels like this is the demagogues who the founders feared, and he says the most important question in the election is the independence of the judiciary and the rule of law, and that’s why he runs.

He loses, of course, but he’s the last, if, if you don’t like the imperial presidency or the populist presidency or the proto Caesar like presidency of today, then the last model of the founder’s presidency that you can find is the unsung hero, William Howard Taft.

Zachary Karabell: I wrote the Chester Alan Arthur volume.

Jeffrey Rosen: Yes, you did. You did.

Zachary Karabell: Of the Times book president series, which is, I’m gonna just trumpet this one right now, so much more obscure than your William Howard Taft one.

Jeffrey Rosen: No, no, no. Please, please. I’m far more obscure.

Zachary Karabell: To the point where I, I passively knew Richard Holbrooke in the, in the aughts, and he found it so amusing that I had written this book, that all he would do when he would introduce me to other people is he would say, I want to introduce you to the world’s leading expert on Chester Alan Arthur, I think at the time might have been true.

There’s actually been a few books since then, so.

Jeffrey Rosen: The volume is great. What did you come out appreciating most about Chester Alan Arthur?

Zachary Karabell: That he was a, a, a decent man in an indecent time and kind of like Taft, he never wanted to be president. He was really kind of thrust into the role. I think I ended the book with cribbing a line from Shakespeare from Malvolio, saying that some men are neither born great, nor achieve greatness, nor have greatness thrust upon them. Some men simply do the best they can in a difficult time, and sometimes that’s just fine.

Jeffrey Rosen: That’s great.

Zachary Karabell: In many ways, I think, you know, Arthur was kind of an exemplar of our desire for a heroic president, which is part and parcel of the imperial presidency, right? That the idea that the individual who is in the office of the presidency has to be this larger than life figure, the striding, the nation, hence the Mount Rushmore mythos, as opposed to someone executing the offices to the best of their ability, which is of course the oath that the president takes.

The president doesn’t take an oath to be some sort of Promethean, well, maybe not Promethean, ’cause that would mean that they’re getting their liver eaten out every day while chained to a mountain. But some sort of Olympian figure as opposed to just an individual serving the country. And we, I think to some degree, that’s no longer how we perceive the presidency, which again is a whole kind of constitutional question mark.

What about this question that you do get from some of the proponents of the unitary executive, and you always have had, that it’s the judicial branch that has overstepped its grounds over the past, I guess, centuries ever since John Marshall accrued to the court the invented right of judicial review, which is, as you know, better than anyone, right? Nowhere in the Constitution as a concept. I mean, it, it may be there as a concept, but it isn’t there as a stated thing and that the court should just, you know, step back, rule on points of law and leave, leave the real arm wrestling between the legislative and executive branch to the big boys or girls or people or.

Emma Varvaloucas: It’s mostly boys, to be fair, for most of history, so.

Jeffrey Rosen: It is.

So for this Hamilton Jefferson book, which I’m just so excited about, I went back to this initial debate between Jefferson and Hamilton about the constitutionality of the bank, and it seems that that establishes the terms of our constitutional debate over the next century. So it’s wrong to say that the power of judicial review was invented or assumed by Marshall over Jeffersonian objections.

Both Jefferson and Hamilton take judicial review for granted. Jefferson says the whole point of a bill of rights is so Courts will enforce it, and Hamilton famously writes the Defense of Judicial Review in Federalist 78, which says that when there’s a clash between the will of the people represented by the Constitution and that of ordinary laws, you favor the principle over the agent.

What’s controversial in Marbury versus Madison is not the power of judicial review. Both Jefferson and Hamilton assume it. What’s controversial is whether or not the president can interpret the Constitution in ways that differ from the Supreme Court. And Jefferson says his conclusion is that he has no duty to turn over the commission because the commission, well, I’ll spare you the, the technicalities. He has a different reading of the law than Marshall does, and that’s why if Marshall orders him to deliver the commission, Jefferson is gonna defy him. And it’s out of fear of being defied that Marshall comes up with this judicial jujitsu, which says we could order Jefferson to turn over the commission, but we won’t because the law authorizing us to order to hear the cases is unconstitutional.

What’s controversial is not judicial review. The big debate in all of American history I discovered is between liberal and strict construction of the Constitution. And in this debate over the constitutionality of the bank, Hamilton says we should interpret the Constitution liberally in along with its spirit, and therefore the bank of the United States is constitutional. And Jefferson says that we have to construe it strictly and according to its text, and therefore the bank is unconstitutional.

And for the next hundred years or 200 years, all the big debates over the constitutionality of nullification, of the tariff of abomination, and secession, and the acts of reconstruction after the Civil War, and the New Deal, and today are all about should we interpret the Constitution liberally or strictly.

Now today we’re seeing calls of Jeffersonian departmentalism and the claim that the president should be able to interpret the Constitution differently than the court Transformative presidents have all asserted that claim. Jackson Lincoln, FDR and Reagan, who are broadly seen as the constitutionally transformative presidents all said they could interpret the constitution differently in the court, but no one has ever defied the court or refused to abide by an unambiguous court order, and that would be a constitutional crisis.

It’s just never happened before. Not even Jackson, who famously said John Marshall has made his decision, now let him enforce it, even if he didn’t actually say that he felt it. But since the court never ordered him to do anything, he never actually defied the court and a crisis was averted.

So that would be a, a crisis today. President Trump hasn’t yet defied an unambiguous order of the court, but the possibility that you could have a president who took this Jeffersonian claim of it’s called departmental further than any president before and has ignored an unambiguous order, would be a constitutional crisis.

Emma Varvaloucas: Zachary was referencing his previous question, the public’s perception of the presidency. I wanna talk a little bit about the public’s perception of the courts and the Supreme Court in particular. I was thinking as you were talking about Taft, like on the one hand, maybe it’s just a nostalgia effect, but there’s something so sweet sounding about like, I’m yearning to be chief justice, and it just kind of like felt like it was hearkening back to a, a pure time aside from the machinations of death by cake, I suppose.

But that also goes to show that it was, you know, the, the courts even then were still muddled by politics and now we have a court where the American public seems to have very low trust in it. There is this overall perception that it has been completely muddled by politics. So I was wondering if you could place the public’s perception of the courts in historical context for us as well.

Jeffrey Rosen: I don’t have the polls before me, but there’s no question the trust in all institutions been declining. The court had been ahead of the other branches. I think it still is overall. Ever since Bush v Gore, things have gotten more polarized. Approval has dropped among Democrats and risen among conservatives, although a year or so after Bush v Gore that the numbers went back ’cause people have a short memory. And then ever since the court has become more polarized, since the appointment of Justice Barrett has shifted the balance, the numbers have become more polarized. Still broadly, the public approves of the court when it likes the results, unsurprisingly, and in a polarized age, more and more people are gonna be unhappy.

I’m sympathetic to Chief Justice Roberts’ effort to preserve the court’s nonpartisan legitimacy at a time of depolarization. He said when he first became chief that that was gonna be his main goal, was to help people see the court as an institution that was above politics.

That wasn’t just Obama judges and Trump judges to use the current breakdown. He’s had a really tough job, not least of which, because the composition of the court itself has not been willing to converge around narrow unanimous opinions, which was his goal, and instead has, has tended to polarize on on the big questions, but he understands that to be the centerpiece of his role.

And as we’re seeing the current executive order cases pan out, it looks like that alliance between at the center between in particular, Chief Justice Roberts, Justice Barrett, and sometimes Justice Kavanaugh may be key in keeping the court from polarizing in the future.

Zachary Karabell: I mean, again, we will see how these things play out and it’ll be very different case by case, depending on what principle you could make an argument, which most people don’t, maybe because they shouldn’t and therefore I’m wrong, or maybe ’cause they don’t ’cause there’s, it cuts against some of the views of the court that in many ways there’s like a seven to two dynamic of the court right now, which is you have two justices in Thomas and Alito, who I think predictably and reliably will rule on a series of things in ways that are predictable and reliable in terms of executive authority, in terms of their version of strict constructionism. Whether or not it’s a, they’re, they’re actually strict constructionists, I guess, is a highly debated topic. And then the other seven are both unpredictable, maybe not the three liberal justices, but certainly the four others are far more nuanced, moderate, unpredictable, not easily slotted in some neat paradigm of left, right, you know, MAGA, liberal, progressive, you name it, in a way that is unfamiliar to people who want really easy binaries, like they’re left wing, they’re right wing. You know, they’re Republican, they’re Democrat. And I’ve certainly been struck over the past six months by how variegated these coalitions seem to be much, I think, to the chagrin of those who thought you could just, all of the federal society just like pack the court, you know, create a series of nominees and boom, you have insta alignment and rubber stamping and it no matter what you think about the Supreme Court, it certainly isn’t doing that.

Jeffrey Rosen: That’s very true and you, you put it very well and it’s complicated. At the National Constitution Center, we always urge learners of all ages to learn the methodologies of constitutional interpretation, textualism, originalism, pragmatism, natural law, precedent based theories starting in middle school. I always love on the Zooms, I always encourage people to read the majority opinions and the dissents and learn the methodologies.

One kid put in the chat, I’m Bill, I’m 12. I’m not sure I can read the dissent. And I said, I, you know, I know you can. And I’m, I’m really struck by how, starting at a very early age, people can understand the differences between these methodologies. And that determines.

Zachary Karabell: Your kids come back and say, daddy, are you an originalist? Is that, is that?

Jeffrey Rosen: My, my, my kids have given up on this long, long ago, and they’re, we don’t, I don’t bore with these debates anymore.

Zachary Karabell: We don’t we don’t talk the Constitution over breakfast anymore.

Jeffrey Rosen: Absolutely. We don’t, we don’t play with the kids at home. Exactly. At least in regard to the Constitution.

And that’s what will determine a lot of this. And, and of course, you know, Justice Gorsuch’s textualism and Justice Barrett’s interest in what she calls liquidation, which is whether practice over a period of time might trump the original understanding are gonna be really important in determining how they come down.

In some of these cases and the broadly pragmatic spirit of, of just Chief Justice Roberts and Justice Kavanaugh will also be key. So that’s why at the Constitution Center we always insist we’re gonna debate these issues in constitutional and not political terms, and don’t assume it’s all politics. You know, just to, to completely reduce the Supreme Court to partisan politics doesn’t accurately capture the way the court decides certainly the overwhelming majority of cases, if not all of them, and you really do have to geek out on text history structure on the individual justices on their methodologies.

Justice Breyer, who’s our co-chair is asked in Zooms all the time, you know, isn’t it all politics? And he says, it’s not. It might be political philosophy. In other words, if a justice is a Jeffersonian strict constructionist or, or a Hamiltonian liberal constructionist that might determine their views or, or if they’re broadly a free market libertarian or a socialist, that that might determine things, but never Justice Breyer says a desire to help this or that president because of their partisan allegiance.

So it’s a more, it’s a subtle distinction, but as, as we all know and we studied, this constitutional law is a subtle blend of, of history and politics and pragmatism. That’s what makes it so exciting to study, but it also makes it necessary to really dig in before you can reach a conclusion about how things are gonna turn out.

Emma Varvaloucas: I would like to throw in a suggestion on the Center’s website, like a, like a pick your fighter style justice thing where it says, you know, Coney Barrett, uh, pro liquidation or whatever, you know, textualist, blah, blah, blah. And then he gives you the, you know, pick your fighter style. I, it is just, I’m just here for the, the millennial and Gen Z ideas, so.

Jeffrey Rosen: You’re signed up. If you do the video, then we’ll, we’ll put it on the website. That sounds great, huh?

Emma Varvaloucas: Do with that what will.

Jeffrey Rosen: Yeah.

Zachary Karabell: Jeff Rosen, I want to thank you for the conversation today. As you said a few times, somewhat sheepishly, it might have been a bit geeky, but I think one thing, we’ve done a bunch of podcasts on the court, on constitutional law. We are neither of us experts, although I try to play one on TV, that this is an area where, where geekiness is called for meaning. It’s about a particular text and it’s about a particular corpus of interpretation of those texts over time from essentially from the Federalist papers onto whatever dissent, whatever Supreme Court opinion you have today. And if ever the devil were in the details, it’s around these sorts of issues and kind of understanding how they play out.

And look, it’s easier. It’s easier to talk about the dramatic Supreme Court stays deportations or Supreme Court overrules Roe v. Wade, and those things happen and they are dramatic. But a lot of all these things are iterative and they are indeed very detailed and they can be kind of wonky and they can be kind of geeky, but, but thank God for that, meaning like that’s because we are engaging real world issues with real world conceptual and moral frameworks.

And it’s wonderful that you run the Center. It is currently an example of what government can do well or at least engender constructively for society. And it’s great that so many people are going to the website, as you said, visiting the Center, kind of engaging in our own history, and you’ve been an extraordinary steward and shepherd of that.

And we look forward to your, your next book. And I so wish I had been at the Hamilton Jefferson dinner party, but I guess that’s in lieu of that. I guess we can read your book.

Jeffrey Rosen: That would be great. Thank you for a wonderful conversation.

Emma Varvaloucas: Thanks so much, Jeff.

Jeffrey Rosen: Thanks.

Emma Varvaloucas: So I’m very appreciative that both of our guests that we’ve had on recently to talk about the judiciary, the Supreme Court, have ended or emphasized that the court is not all politics. I was catching up as one does, simply for this podcast. I don’t do this for fun. I think you might Zachary, but I was catching up on the cases that aren’t on the Supreme Court’s emergency docket, just on their normal docket for the term.

And I was really surprised to see, you know, the New York Times, along with just a summary of the case and what’s being decided, publishes polls about where the public stands on these issues. And I think out of the, I wanna say there are nine cases altogether, out of the nine, I think there are four where actually Democrats, Republicans, and Independents are all in agreement about what they believe the decision should be.

So that doesn’t mean that that’s what will happen, but there was more agreement on these issues than I was expecting. I was actually kind of expecting all of them to be divisive across the board.

Zachary Karabell: Yeah, no, that’s, I mean I think that’s a really good point just defensively for a moment, it’s true. I may enjoy this, but to employ a moment of like Gen Z, millennial speak, don’t harsh my mellow if, if I’m gonna get into this whole.

Emma Varvaloucas: Don’t harsh your vibe.

Zachary Karabell: Vibe and also is it also harsh my mellow? It’s just harsh your vibe?

Emma Varvaloucas: I think is like from the seventies.

Zachary Karabell: I don’t remember harsh my mellow.

Emma Varvaloucas: But I’m not trying to call you out here. I’m trying to call you in, not call you out.

Zachary Karabell: Alright, how about don’t, don’t geek shame me, which I know is a stealing from another popular phrase, but I’ll just use that one and you’ll get my idea.

Emma Varvaloucas: But geek shaming is kind of fun though.

Zachary Karabell: Okay. Well, I mean that’s there, there, there is that.

I guess we’ll, we’ll decide whether we do another Supreme Court episode depending on what happens over the next months. I mean, I guess we will know. We’ll know some of it. By June, I, the, the courts tend to do their, their announcements at the end of June. So we’ll know some of this soon, but obviously these are not gonna be the end of the discussion. I think a lot of this is gonna play out more over the next two years.

And as we talked about with Jeff during the episode, there is a lot of uncertainty about how much of what, what looks to be an unstoppable momentum of the second season of the Trump show to accrue more executive authority, whether or not that actually will be lasting, permanent, whether we’ll run out of steam. The really interesting thing about tariffs, of course, and I think we alluded to this in another show, is there’s that delicate dance between, you want some degree of a political economic referendum on the tariff policy before you have a judicial one, meaning there’s, there’s societal positives for people to respond to the invocation of tariffs and either accept or reject them on both political and economic grounds before the courts kind of rule on the fouls. It’s kind of the, the sports analogy of let the players play before you jump in to call a foul, because if you were to rule the terrorists unconstitutional, not the tariffs, but the, the use of presidential authority for broad scale tariffs under existing statutes. Before there was some degree of public debate, you could always, I mean, the, the danger of that is always that people then go, uh, the will of the people, either legislatively or through the executive branch is being thwarted by unelected judges.

Emma Varvaloucas: I mean, there’s a whole debate around nationwide injunctions as well, right? I mean, I personally, I don’t really buy the arguments about what would replace them, but I understand the arguments for why one judge and one circuit somewhere shouldn’t be able to stop, stop policy coming from the executive branch.

I mean, as long as that policy is valid. But anyway.

Zachary Karabell: I mean, that’s another case of course, where everybody supports national injunctions when they support the injunction.

Emma Varvaloucas: Right. What Jeff was saying about the Supreme Court, right, you support it when it, when it does stuff that you want it to do, you don’t support it. No one really argues things on principles for like from the general public, generally speaking. But I mean, on tariffs though specifically, I do think there has been. I understand your point.

It would be different if terrorists like fully went into effect. People really felt the pain in their pocketbooks and then, you know, we entered a, a never again tariff era amongst the general public. But I still think that there has been a pretty wide and relatively deep reaction to them. Like the anticipation where that’s brought the economy already, even without them really coming in fully, fully, fully into effect of us feeling the effects completely. So that has happened to a certain extent.

Zachary Karabell: No, that, and partly that’s what I meant, that it’s a good thing that the sequence.

Emma Varvaloucas: Yeah. That’s playing out.

Zachary Karabell: Is playing out is more positive than had a court done an injunction against the tariffs in early April.

Emma Varvaloucas: Yeah. Yeah, yeah. Yeah. I agree, fully agree.

Zachary Karabell: Which could have which you could have foreseen judicially, meaning someone saying, Hey, wait a minute, this is beyond the scope.

And you know, before it goes into effect we have to rule on it because it will do irreparable harm otherwise. So anyway, I thought it was a great discussion. We say that about all the discussions. We think they’re great discussions, but that’s ’cause they’re all great discussions, including the one we just had.

Emma Varvaloucas: Objectively, yes.

Zachary Karabell: Objectively. Absolutely.

I wanna thank you all for listening. Please tune into our shorter form weekly Progress Report where we look at some of the tidbits and news of the week that you likely will have missed, some of the constructive positive news of the week, which tends never to be the news, but which we at The Progress Network try to highlight as a necessary part of one’s news diet that you need to make an effort to seek out and ingest.

And send us your comments to theprogressnetwork.org. Sign up for our newsletter, which is called conveniently enough, What Could Go Right? so that you can use the same title for two, at least two different mediums. Actually, the podcast itself is part of multiple mediums ’cause we do the audio version as a podcast, and then we also do a video version on YouTube and we do all these social clips on everything else. So there you have it.

And we will be back with you next week. So thank you, Emma. Thank you to the Podglomerate for producing, and thank you all for listening.