Advisory Opinions – “Burkeanism and the Administrative State”

Podcast: Advisory Opinions by The Dispatch
Episode Date: December 16, 2025
Hosts: Sarah Isgur, David French
Guests: Professor Will Bode (University of Chicago Law), Professor Julian Davis Mortensen (University of Michigan Law)

Episode Overview

This episode explores the tension between formalism and functionalism in constitutional law, with a special focus on the structure of the administrative state and debates around executive power, the unitary executive, and nondelegation doctrine. After some timely reflections and podcast community updates, the heart of the episode is a spirited conversation with legal scholars Will Bode and Julian Davis Mortensen about how Supreme Court doctrines have evolved—and should evolve—when it comes to restraining the powers of the presidency and administrative agencies. The discussion is deeply philosophical, tackling Burkean jurisprudence, the acceptability of judicial restraint, and what principled conservatism really means amid contemporary legal controversies.

Key Discussion Points & Insights

1. Reflections on the News & Gratitude Amidst Difficult Times

• [02:19-05:31] The episode opens with Sarah and David reflecting on a difficult news cycle (Brown University, Bondi Beach, Syria), gratitude for health, and the podcast’s supportive community.
  • Memorable Quotes:
    • “To be grateful for one’s health and one’s family’s health is huge. And David, truly, I mean this. To be grateful for the important friendships, and you are one of my most important friends…” — Sarah Isgur [03:53]
    • “...it feels more familiar almost instantly because we do have a really special community here, and we're grateful for you guys.” — David French [04:42]

2. Listener Emails: Lawyers’ Impact & Taft’s Reputation

• [05:31-09:14] Sarah shares emails highlighting the crucial impact lawyers can have through pro bono work and a correction to their past remarks about William Howard Taft’s health, emphasizing the possibility of transformation and redemption.
  • Memorable Quotes:
    • “Advisory Opinions is so good at restoring right thinking about so many things. Let that legacy include declaring clearly that William Howard Taft transformed from a fat president to a judicial fitness icon.” [07:45]

3. Deep Dive: Ham v. United States and the Use of IQ in Death Penalty Cases

• [09:14-17:41]
  • Case summary: Smith, on death row, has had five IQ tests over 40 years (range: 72–78). SCOTUS precedent (Atkins v. Virginia) pegs intellectual disability—and thus ineligibility for the death penalty—at IQ <70.
  • The oral argument led both hosts to reevaluate reliance on rigid IQ cutoffs, suggesting a more holistic approach.
  • Key Insights:
    • IQ tests are products of Progressive Era technocracy, and their use as a dispositive bright-line is questionable.
    • “It should instead be a holistic assessment of whether this person is so profoundly intellectually disabled as to not be able to appreciate now their punishment.” — Sarah Isgur [11:57]
    • “Treating the IQ number as a kind of a magic number is just a fundamentally flawed approach. There has to be an additional kind of inquiry that is much more holistic.” — David French [14:18]
    • Justice Kagan proposes: A single qualifying IQ score opens the door to considering broader evidence.

4. Main Segment: Burkeanism, Formalism, Functionalism, and the Administrative State

[25:07–77:05]

a. Unpacking Concerns Over the Court’s Approach to Executive Power

• Will Bode expresses concern that the Supreme Court applies formalism inconsistently—strict when empowering the President, lax when restraining executive power.
  • “I'd rather have a non originalist court than a court that uses originalism to help the president win cases and then finds excuses not to use it against him.” — Will Bode [25:07]

b. The Formalism vs. Functionalism Cycle in Unitary Executive Theory

• Julian Davis Mortensen argues recent Supreme Court trends have shifted from a pragmatic, functional regime (the “shaggy functionalism” Scalia derided) to rigid formalism—only to start carving functionalist exceptions once doctrinal formalism creates new problems.
  • “The reason to tear it all up was principle. But then we won. ...Now we're going to do what you were doing, and we never really meant it about principle and that's ... frustrating.” — Mortensen [33:52]

c. What Exactly Is Burkeanism in Law?

• Mortensen lays out two core Burkian tenets:

  1. Law and institutions are inherited gifts, imposing obligations to care for and preserve.
  2. Do not prioritize revolutionary or abstract theories over lived, accumulated experience.

• David French challenges whether “Burkeanism” really supports the ever-growing administrative state, arguing that the evolutionary process shouldn’t neuter constitutional text (“the words on the page”).

  • “What is the Burkeanism here protecting this expanding organism?... Is that what the Burkianism is?” — French [48:00]
  • Mortensen responds that the “evolved practice of governing through delegation” is itself a product of this tradition.

d. Definitions: What Is Formalism? What Is Functionalism?

• Formalism: Bode describes it as following the logic and meaning of the constitutional text, even when that upends longstanding practice or seems unwise.
  • “Formalism is caring more about things like what is the logic and meaning of the words enacted by the Constitution, even if it’s not what we’ve been doing…” — Bode [38:11]
• Functionalism: Resolving issues based on practical realities and prevailing circumstances—even if they don’t strictly adhere to text or doctrine.

e. Should Change Be Slow (Knots in a Rope) or Sweeping?

• Sarah Isgur analogizes a Burkean approach to “untying knots in a rope,” favoring incremental judicial rollback of administrative powers rather than sudden abolition.
  • “Burkeanism, I think, would say…if you want to be a Burkean, you have to untie each knot over the next hundred years.” — Isgur [59:44]

5. Nondelegation Doctrine and the Major Questions Doctrine

• Mortensen contends the nondelegation doctrine has no firm grounding in the original Constitution, and judicial attempts to revive it are functionally contradictory and betray both originalism and restraint.
  • “...there was not anything like a non delegation doctrine in the sense that we mean a doctrine today...” — Mortensen [56:31]
• Both Bode and Mortensen agree that prudential considerations may counsel against sweeping doctrines. Mortensen favors judicial restraint and believes, pragmatically, that even egregious delegations are for Congress to limit, not courts.

6. The Trump Administration, Conservative Legal Arguments, and the Court

• David French floats a theory: The Supreme Court is much more receptive to “traditional” conservative legal arguments (e.g., separation of powers, textualism) than to “MAGA” arguments (“unbound” executive authority, overturning settled law).
  • “...when he comes to the Court with... traditional conservative legal argument, he’s going to fare really well; when he comes...with... MAGA argument, it’s much spottier.” — French [68:18]
• Both guests (esp. Bode) warn that, nonetheless, executive branch practices are pushing the boundaries (e.g., impoundment of funds), and courts have sometimes been lenient.

7. Final Thoughts: The Scope of Burkeanism and the Path Forward

• Isgur and French close by wrestling with the practical consequences of radical versus incremental change. Even as both express misgivings about the modern administrative state, they agree the most likely path is a slow, careful rollback—knot by knot—rather than a wholesale judicial revolution.
  • “[S]ome piece of me really wants to simply say nope. ...as in tomorrow there is no FTC and Congress will have to repass a federal trade act if they would like to have an FTC tomorrow. It’s like the most anti Burkean thing that someone could possibly imagine...” — Isgur [80:40]

Notable Quotes and Timestamps

• “[The] difference that lawyers can make when they volunteer or heavily discount their time...” — Sarah Isgur [05:31]
• “It should instead be a holistic assessment of whether this person is so profoundly intellectually disabled as to not be able to appreciate now their punishment.” — Sarah Isgur [11:57]
• “Treating the IQ number as a kind of a magic number is just a fundamentally flawed approach. There has to be an additional kind of inquiry that is much more holistic.” — David French [14:18]
• “I'd rather have a non originalist court than a court that uses originalism to help the president win cases and then finds excuses not to use it against him.” — Will Bode [25:07]
• “...we’ve moved from the functionally oriented world that dominated the reality of American politics and political practice...and have chucked that...out in favor of a theory that’s grounded in three...words, maybe five words, and is highly contestable as a factual matter.” — Mortensen [30:50]
• “What is the Burkeanism here protecting this expanding organism?... Is that what the Burkianism is?...what exactly are we sticking with?” — French [49:00-50:00]
• “Formalism is caring more about things like what is the logic and meaning of the words enacted by the Constitution, even if it’s not what we’ve been doing…” — Bode [38:11]
• “Burkeanism...would say...if you want to be a Burkean, you have to untie each knot over the next hundred years...” — Isgur [59:44]
• “...there was not anything like a non delegation doctrine in the sense that we mean a doctrine today...” — Mortensen [56:31]
• “...when he comes to the Court with... traditional conservative legal argument, he’s going to fare really well; when he comes...with... MAGA argument, it’s much spottier.” — French [68:18]

Timestamps for Major Segments

• 0:00–05:31: Opening banter, reflections on tough news, gratitude
• 05:31–09:14: Email reviews – legal profession impact & William Howard Taft
• 09:14–17:41: Ham v United States, IQ tests & death penalty discussion
• 25:07–41:12: Bode and Mortensen: Formalism, functionalism, and the executive power
• 42:01–68:14: Nondelegation, Burkeanism, incrementalism vs. revolution in legal change
• 68:18–77:05: Trump-era jurisprudence, principles and the “MAGA” cases
• 77:05–82:44: Hosts debrief, “knots in the rope” analogy, incremental change vs. sweeping reform

Tone & Language

• The tone is intellectually engaged, good-humored, but never flippant. The hosts and guests frequently use analogies (“knots in the rope,” “order muppets vs. chaos muppets”) and self-deprecating asides to make complex legal doctrines accessible.
• The discussion is full of careful, qualified remarks—especially when touching on the limits of history, philosophy, and judicial modesty.

For New Listeners: Why This Episode Stands Out

• This is an ideal entry point for listeners seeking clarity on contemporary legal debates about the administrative state, the proper role of precedent and tradition (Burkeanism), and how Supreme Court justices weigh methodological commitments (formalism, functionalism) against real-world pressures.
• The “knots on the rope” and “order muppet/chaos muppet” analogies provide memorable ways to think about slow vs. rapid legal change.
• The episode features distinguished guest scholars who model principled disagreement—informative for lawyers, law students, and engaged citizens alike.