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The Opinions
This Supreme Court Philosophy Could Constrain Trump
00:23:20
A federal judge on the legal theory that is often at odds with an authoritarian view of governmental power.
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- [00:00]
Judge Jeffrey Sutton
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- [00:34]
David French
This is the Opinions, a show that brings you a mix of voices from New York Times opinion. You've heard the news. Here's what to make of it.
- [00:48]
I'm David French and I'm an opinion columnist at the New York Times. I'm also a lawyer who has practiced constitutional law for more than 20 years before I became a journalist. Many of Trump's recent executive actions will be ultimately decided by the court. Elon Musk's access to the Treasury Department's payment system, the effort to end birthright citizenship, freezing federal funding. The list goes on. And while it's tempting to see the conservative judges and the Trump administration as one big right wing blob, that is not the case. The vast majority of Republican appointed judges and justices, even the judges and justices that Trump appointed, are pre Trump conservatives. They were taught and advocated a legal theory that is often fundamentally at odds with an authoritarian view of government power. And it's no accident that the first Trump administration lost time and again even when Republican nominees dominated the court. One of the judges whose court could hear a case challenging Trump's agenda is Judge Jeffrey Sutton. He's the chief judge of the Sixth Circuit Court of Appeals and one of the most respected judges in the country. He is known as a feeder judge. His law clerks disproportionately go on to work for the Supreme Court. Judge Sutton cannot talk about the specifics of any case that may come before him, but he can do something that I think is even more important than that talk through the principles that guide judges to make their determinations. It may sound really high level, but small things like how a word is interpreted, or bigger questions like how is a judicial philosophy applied? Have huge consequences. And I think now more than ever is an important time for Americans to understand these subtleties. They may very well decide the future of American democracy. So I asked Judge Sutton to walk me through them. Judge Sutton, thank you so much for joining me.
- [02:51]
Judge Jeffrey Sutton
It's a pleasure to be here. Thank you, David.
- [02:53]
David French
So Judge, I Want to begin in a very basic way. You know, one of my absolute favorite comedy movies is this movie called Office Space. Know if you've seen it?
- [03:02]
Judge Jeffrey Sutton
I'm afraid not. I'm a very serious federal judge.
- [03:05]
David French
Well, I'm afraid you're missing out because it's one of the best office comedies. And there's this part of it where the consultants come in and they're talking to all the employees and they begin with this question, what. What would you say you do here? And so I want to begin with a very similar question. You're the chief judge of the Sixth Circuit Court of Appeals. What is it that you do? Describe your job for the listeners?
- [03:32]
Judge Jeffrey Sutton
Sure. Well, the Sixth Circuit is one of 13 intermediate federal courts of appeals. So the trial courts take cases to us if there's an appeal, and if someone doesn't like a decision of the 6th Circuit, they take it to the U.S. supreme Court. So we're middle management judges. You know, to give you a sense of how, you know, just the 6th Circuit, which covers Michigan, Ohio, Kentucky, Tennessee, I think we have like 5, 10 million more people in that circuit than in all of Australia. So our jurisdiction is broader than the High Court of Australia's. The one difference is we're not the final say. The U.S. supreme Court, of course, can reverse us if they disagree with one of our decisions.
- [04:15]
David French
So the reason why I wanted to have this conversation with you, Judge, is that originalism is a word that is often used and I feel like not as often, but understood. And so why talk about it? This is not just an academic exercise, because for the first time, certainly in my adult life, I would say there is a single judicial philosophy that I would say is certainly the dominant philosophy of the Supreme Court. And if it's the dominant philosophy of the Supreme Court, it's going to have disproportionate effect on the courts of appeal. And it is also a philosophy of an extraordinary number. I'm not going to say most of the appellate justices themselves, but a very large percentage of appellate justices would say that they are also originalists. So let's just get very basic. Judge Sutton, what is your definition of originalism?
- [05:06]
Judge Jeffrey Sutton
Well, it's really essentially paying attention to the text of the Constitution, the words of the Constitution. That's the basic idea. I think the essence of originalism is to respect those words, respect the context historically in which they were written, and then as a judge or a justice, adhere to that fixed meaning because just analogize it to something else we put in writing. If you and I Were to engage in a contract to sell a house, we would want to put that in writing. We would say the price and the time. And having put it in writing, we would both assume that the meaning of the contract would be fixed. It wouldn't change because one of us had a misadventure or the stock market went down. We would be stuck with the words. Now, in a Constitution, the two key goals are structure, establishing who's doing what, and then rights of individuals. And the reason you commit those to writing is you want to make sure that a few dozen years, a couple hundred years, or even 250 years later, that language, those guarantees are respected, come what may. Now, the only thing that's slightly misleading about originalism or textualism is that it's a lot easier to explain than it is to necessarily follow. So back to our House contract. If you and I entered into a contract where you were going to agree to never do anything unreasonable to me for 200 years, that's not as easy as a House contract. I think that's the heart of the problem when it comes to the U.S. supreme Court. I actually think all justices on the Court, all justices who have ever served on the US Supreme Court, respect the language of the Constitution. They generally assume it has a fixed meaning, and they're all interested in the history that led to the guarantee and the immediate history after the guarantee. I think the challenge occasionally is what to do with a very general word like unreasonable or a concept like equal protection and then applying it to circumstances that no one contemplated. I think that's where the justices, I think, understandably, and we Court of Appeals judges struggle because no amount of history searching is going to tell you precisely what to do with this 18th century language in the 21st century, at least. As to some things, that leads me.
- [07:44]
David French
To my next question. I think you really hit the nail on the head as far as, you know, a lot of people are listening and they say sometimes the text is quite clear, such as, what is the threshold for overriding a veto, for example. But if it's something like a prohibition against a, quote, unreasonable search and seizure, or the sweeping language of the First Amendment, congress shall make no law abridging the freedom of speech. This is where things get a lot more debatable. And how does an originalist look at that kind of vague language and determine a fixed meaning? What's the process? What's the method?
- [08:24]
Judge Jeffrey Sutton
Right. Not easy with free speech and the First Amendment because, well, there's some parts that are easy. Like we know for sure that it was designed to allow people to dissent from the existing government. So political speech where you disagree with who the President is or who your senator is, and you want a new one, that's easy, that's core. Everybody understands that liberals and conservatives agree 100%. But boy, now what do you do if it's pornography or commercial speech advertisements. I actually think, I think the debate is less about originalists versus living constitutionalists than it is about judges.
- [09:07]
David French
When the meaning runs out, super quick interruption. Judge, what is living constitutionalism? What do you mean by that?
- [09:14]
Judge Jeffrey Sutton
Yeah, so I think the concept is that most words in the Constitution are fixed. For example, the president has to be 35. That was true in 1789, it's true today. It doesn't matter that actuarial tables have changed. The living constitutionalist perspective really comes into play with more general words. Unreasonable search and seizure, equal protection, perhaps due process. And the idea is that judges have authority to give an evolving meaning to some of these terms that it's not fixed in 1789 or 1791. And in American history, that approach has sometimes been used to identify new norms and to constitutionalize them. The debate with originalists is, yes, we respect that. But for every time living constitutionalism leads to a happy result with more protection of liberty, there's always the risk that the evolving nature of the guarantee might go down. In other words, what goes up can go down. So I'm on the somewhat stingy side that if the meaning runs out, like I'm just not sure, what do you.
- [10:25]
David French
Mean by the meaning runs out?
- [10:27]
Judge Jeffrey Sutton
That the history doesn't really tell you what free speech should mean with respect to say, technology, commercial speech, advertising. To the extent the history runs out in terms of telling you what the fixed meaning is, my take is to say at that point we have democracy, representative government. The default is to allow the states legislatures and Congress to sort it out. And to get some leeway on that, I think others would fairly say I'm not sanctimonious remotely about my perspective. But others would say no, no, no, there's no default. You've got to just keep looking and do the best you can and come up with the best reading and that becomes the fixed meaning. And then you've got to stick with it.
- [11:13]
David French
Right? So one of the things that is happening in the moment, in real time that we are seeing is that a lot of the most contentious cases you know, that you can think of that are the headline making cases over the last several, many years have been what you might call the Culture war cases. So a religious liberty case or a case about abortion or free speech. But now we're moving into something different, which is key clashes around separation of powers, which is a term that, you know, all but the nerdiest person, their eyes kind of glaze over. What are we talking about here? So talk to me a little bit about how does an originalist approach the structure, the role of the legislative, the role of the executive, the judicial branch as well?
- [12:02]
Judge Jeffrey Sutton
Well, first of all, it might surprise people, but I think most judges, certainly most originalist judges, think structure is way more important. Like that's the most important thing we do is figuring out what the answer to the who decides question is. Is this for the President? Is this for Congress? Is this for the President and Congress? And that there's nothing more important than that role. And the whole idea of separating powers was this assumption that no one in government could be trusted, at least eventually. There's just always the risk that someone in government at some point is going to lose track of the true interests of the people they're representing, their constituents. And the great insight of the framers was the only way to deal with this human nature problem was to separate government in as many ways as possible, both horizontally, the president, Congress and the courts, and then vertically, the national government with the states. Now, as an originalist, the thing that's hard about this, if we think finding the fixed meaning of free speech in 1791 and applying it to today is hard, it's even harder with separation of powers, because that's actually implied.
- [13:12]
David French
Right.
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Judge Jeffrey Sutton
The Constitution doesn't have a separation of powers clause, the Federal Constitution, anyway. It implies it by Article one is for Congress. Article two is the President. Article three is the courts. So obviously the Federalist Papers and some of the philosophers on which the framers relied are going to be really helpful. But a lot of judgment involved in figuring out where those lines are. I do think the key point for the court is just making sure no one branch gets too much power. That strikes me as almost the whack a mole game of American history, where you're just constantly making sure that no one branch of government has too much authority. And when they do, responding to that by trying to limit that authority so that there is balance but fixed meaning, and balance is not a walk in the park. That's a difficult thing to sort out.
- [14:10]
David French
Well, I'm glad you're saying that, because one thing I was talking to my students not long ago about originalism, and I said, I just want you to understand there's kind of two kinds of originalism. There is one L dorm room originalism, and then there is fully grown originalism. And 1L dorm room originalism is sort of this, when you first encounter it, oh, I can figure this all out. There is one answer to all of these questions, and it's found by sort of digging through the historical record. And then you do that for a while and you realize, oh, history is messy. It's subject to competing interpretations. So that even two originalists applying a very similar method could reach different outcomes. Which is one of the reasons why you don't always have the originalist justices on the Supreme Court in lockstep with each other. And so let's dig down on one concept that has become a part of originalism that's getting controversial, and that is the phrase text, history and tradition. That a judge who is an originalist is looking at the text, as we said, looking at history and looking at tradition. The first part seems pretty self explanatory, but the next two parts talk to me, what is the difference between history and tradition? Is there really a difference? Is this kind of just a phrase that flows off the tongue? How do you interpret that?
- [15:35]
Judge Jeffrey Sutton
I think what it's trying to capture is the history is the original public meaning of the words. So you have the text, you have these words. They have a time, 1789, 1791, 1868. And so the history part of it is the backdrop, the understanding of that language and what an educated person would have understood those words to mean. And I think tradition helps to elaborate the meaning of the general terms plus the history in this way, I guess the insight, the intuition is that if you enact something, this language in the Constitution in 1789, but if in 1820, everyone is following this kind of understanding, that's the tradition I think they're trying to capture. I think it has a. A decent intuition behind it. I probably prefer the practices of people in 1820 to my sense of things in 2025. I mean, they're closer in time, but I think often tradition is allowed to refer to things a little later.
- [16:42]
David French
So a couple of things. One, I want to make some of our more abstract structural stuff a little bit more concrete. I don't have insight into the future. I can make educated guesses, but one of the educated guesses that I can make is that a couple of doctrines, legal doctrines, that the Supreme Court has been articulating in, in many ways, maybe even reviving, might become more important in jurisprudence over the next few years. And one of them is called non delegation and another one's called major questions doctrine. So I guess my question to you, Judge, is what are those two doctrines and why should reasonably informed Americans become familiar with what they mean?
- [17:23]
Judge Jeffrey Sutton
Yeah, well, I would use adult supervision before I tried this out at a cocktail party because it may be your last invitation. But let's start with major question doctrine. I think the way it's been explained so far is that if an agency, so federal government has lots of agencies, the fcc, et cetera, and if agencies run by the President announce a rule that's really significant, the Court has said in its major question doctrine that they've got to find a clear statement in the congressional statute to allow that rule. So it kind of creates a hurdle for the agency to clear if it announces something that's a big idea. And I think a lot of people have been skeptical of the major question doctrine. Perhaps I'm a little fearful that the Court is somehow showing its skepticism of agencies and the power they've developed in the last roughly hundred years. I think there's another way to think about it. Justice Barrett at one point made the point that it's just kind of a common sense intuition, a common sense canon that if you have a really big rule, you better show some evidence in the statute for that very big rule. I think that part of it most people would understand. They wouldn't want federal agencies announcing huge policies with very little support from a statute that their representatives in Congress passed. Non delegation, I think you're right is an interesting issue. And here's the way that one again, I would not try this at a cocktail party, but I do it all.
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David French
The time, Judge, and that's why I'm just covered up in invites.
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Judge Jeffrey Sutton
Yeah, I'll bet Friday nights are a lonely night. Yeah. So the idea there, again, I think most people agree with it, is that we can't allow Congress to basically delegate, pass on, give its power to an agency and let it make all the complicated policy choices. So it would be a little unusual if you had Congress just saying to the fcc, go do whatever seems right to you. That's fine. I think all nine members of the Court would be skeptical of and would just be a non delegation problem. You can't do that. So I think you're right that that is going to be a relevant doctrine in the future. If I were a citizen, the way I would think about it is just who do I want making the choices? Do I want it to be Congress with the support of the President or I want at the agencies run by the president. And as we know from the last six months, you can have presidents from different political parties. So whatever your view, if you like Republican presidents with lots of power, be prepared to deal with Democratic presidents with lots of power. And so it's actually a neutral debate. It's not favoring one side or the other.
- [20:28]
David French
So you issue decisions, you make determinations. And let's talk about how judicial decisions are enforced. What are the tools at your disposal to enforce a decision? You know, in, in my life, in my litigation career, I never really thought that through because once we got a decision from the court, everybody just did it. But what are the enforceability tools that reside with the judiciary? Do you have any real substantial tools?
- [20:57]
Judge Jeffrey Sutton
Well, not really. We famously do not have the power of the treasury, we don't have the power of the sword. We don't have a military to enforce our decisions. We issue judgments and those judgments are enforceable. We have U.S. marshals. So for example, if someone is convicted of a crime, there's a U.S. marshal to enforce the judgment. But when you think about the court invalidating a state law, that's a little trickier. All we can do is issue the judgment. In fact, let's just say it's a provision in a state statute. We say it's unconstitutional. It's still there. There's no power of erasure. We don't take it off the books. It's still sitting there. The question is whether someone relies on it. I think the reason, at least historically, in the last hundred years, people have relied on those things are twofold. One is trust and faith in the courts, which of course is really important. But the other is the self interest problem, that if you're a government that refuses to follow a judgment, you're going to get a lot of lawsuits. You're going to have to pay attorneys fees for all of those lawsuits. That gets very expensive, very quickly. And then you might be sanctioned, which contempt can mean going to jail if you're an officer of a government. Or sanction could be monetary. So I think those are the reasons. But you know, you're right. And as a matter of American history, there have been times where individuals and even governments and president of the United States in one case, not willing to follow U.S. supreme Court decisions. It's not something we want to have happen again.
- [22:37]
David French
Judge, thank you very much for the time. I really appreciate it.
- [22:40]
Judge Jeffrey Sutton
Thank you for inviting me, David.
- [22:59]
David French
If you like this show, follow it on Spotify, Apple or wherever you get your podcasts. This show is produced by Derek Arthur, Sophia Alvarez Boyd, Vishaka Durba, Phoebe Lett, Christina Samulewski and Gillian Weinberger. It's edited by Kari Pitkin, Alison Bruzek and Annie Rose Strasser. Engineering, mixing and original music by Isaac Jones, sonia Herrero, Pat McCusker, Carol Saburo and Afim Shapiro. Additional music by Amin Sohota. The Fact Check team is Kate Sinclair, Mary, Marge Locker and Michelle Harris. Audience strategy by Shannon Busta, Christina Samulewski and Adrian Rivera. The executive producer of Times Opinion Audio is Annie Rose Dresser.