The Judicial Counterrevolution

How the Supreme Court Abandoned Constitutional Governance

Judge William Young, eighty-four years old, appointed by Ronald Reagan, recently did something extraordinary. He held a trial—an actual trial with witnesses, evidence, discovery, cross-examination. In the Trump era, this counts as an act of resistance.

The case involved students arrested by ICE for expressing views about Gaza. Not for violence. Not for threats. For speech. Protected speech. The kind the First Amendment exists to defend. Judge Young spent months building a record, putting officials under oath, documenting how Marco Rubio personally signed off on deportations of protesters, how these orders filtered down through the federal bureaucracy.

Then he wrote 161 pages explaining what he found. He began by reproducing a handwritten postcard someone sent him: “Trump has pardons and tanks. What do you have?” Judge Young’s response: “Alone I have nothing but my sense of duty. Together, we the people of the United States—you and me—have our magnificent Constitution.”

What follows is not just legal analysis. It’s moral witness. Judge Young finds, by clear and convincing evidence, that the Secretary of Homeland Security and the Secretary of State “deliberately and with purposeful aforethought” acted “intentionally to chill the rights to freedom of speech and to peacefully assemble.” This violated the First Amendment. The conduct was “viewpoint discriminatory.” The goal was “terrorizing similarly situated non-citizens and other pro-Palestinians into silence because their views were unwelcome.”

Then Judge Young does something historically notable and worthy of some attention. He writes that the president “wholeheartedly supported” this constitutional violation through “many individual case-specific comments, some quite cruel.” And then: “Such conduct of course violates his sacred oath to faithfully execute the office of President of the United States, and to the best of his ability preserve, protect and defend the Constitution of the United States.”

A federal judge, appointed by a Republican president, stating plainly that the president’s conduct amounts to impeachable violation of his oath of office.

This is what judicial independence looks like when judges still remember what their job is.

The Pattern Revealing Itself

Judge Young is not alone. Between May and September 2025, federal district judges—appointed by presidents of both parties—ruled against the Trump administration 94.3 percent of the time. These aren’t partisan hacks. They’re judges doing what judges are supposed to do: applying law to facts, protecting constitutional rights, checking executive overreach.

A Trump-appointed judge in Oregon blocked his attempt to federalize the state’s National Guard, finding it violated federal law and the Tenth Amendment. She wrote: “The president is federalizing the Oregon National Guard absent constitutional authority. His actions undermine the sovereign interest of Oregon as protected by the 10th Amendment.”

Another judge, examining Trump’s claim that Oregon was “burning to the ground,” noted dryly that “what he posts on Truth Social is not evidence.”

District judges—the ones closest to facts on the ground, furthest from political power—are doing their jobs. They’re holding trials where possible. When emergencies require faster action, they’re issuing temporary restraining orders and preliminary injunctions based on careful analysis of evidence and law. They’re explaining their reasoning in detailed opinions. They’re protecting constitutional rights against executive violation.

And then the Supreme Court reverses them. Ninety-three point seven percent of the time.

The Shadow Docket as Constitutional Sabotage

The Supreme Court isn’t just disagreeing with lower courts. It’s systematically dismantling their work through what’s called the “shadow docket”—emergency orders issued with minimal briefing, no oral argument, often no explanation at all.

Justice Elena Kagan describes it precisely: “Per usual on our emergency docket, we have had to consider this application on a short fuse—less than 3 weeks. We have done so with scant briefing, no argument, and no opportunity to deliberate in conference.”

They’re not even seeing each other face to face. They’re issuing orders that reshape constitutional law without the rigor that judicial decision-making requires. As Kagan writes: “Our emergency docket should never be used, as it has been this year, to permit what our own precedent bars. Still more, it should not be used, as it also has been, to transfer government authority from Congress to the president, and thus to reshape the nation’s separation of powers.”

This is an affront to the rule of law and democratic institutions. The Supreme Court’s basic function is establishing what the law is. But shadow docket orders don’t explain the law. They’re short, cryptic, often unsigned. They leave lower court judges guessing about what they’re supposed to do next.

Twelve federal judges, appointed by presidents of both parties, told NBC News they feel abandoned. “They don’t have our backs,” one said. Another: “The justices are undermining their work or leaving them thrown under the bus.”

The full Fourth Circuit Court of Appeals held what reporters described as “an extended venting session” where judges tried to make sense of Supreme Court orders the justices never bothered to explain. Judge James Wynn: “We need to understand why you did it. We judges would just love to hear your reasoning as to why you ruled that way. Then it makes our job easier. We will follow the law. We will follow the Supreme Court. But we’d like to know what it is we are following.”

This isn’t judicial disagreement. This is institutional abandonment.

The Gorsuch Rebuke

Justice Neil Gorsuch, joined by Brett Kavanaugh, recently wrote a concurrence rebuking Judge Young for supposedly not following Supreme Court orders. “Lower court judges may sometimes disagree with this Court’s decisions, but they are never free to defy them,” Gorsuch lectured. “When this Court issues a decision, it constitutes a precedent that commands respect in lower courts.”

The problem: the Supreme Court hasn’t been issuing “decisions” in any meaningful sense. It’s been issuing cryptic orders without explanation, then attacking lower court judges for not correctly divining what the justices meant.

Judge Young—who wrote hundreds of pages of careful analysis building a factual record and applying constitutional principles—felt compelled to apologize to Gorsuch and Kavanaugh even though he did nothing wrong.

Retired Justice Stephen Breyer came out publicly to defend Judge Young, saying: “I never saw an instance where he would deliberately defy a controlling opinion or legal statement from our Court or from the Supreme Court. I never even had an instinct or a guess or a hunch or anything that he was doing anything like that deliberately.”

It’s extraordinary that Breyer felt the need to issue this statement. It reveals how poisoned the relationship between the Supreme Court and lower federal courts has become.

The Intellectual Infrastructure of Consolidation

The conservative judicial revolution now ascendant didn’t emerge spontaneously. It was built methodically through institutions like the Federalist Society, which spent forty years creating intellectual infrastructure for what amounts to systematic dismantling of constitutional constraints on executive power.

The Federalist Society presents itself as defenders of originalism and textualism—neutral interpretive methods that let the Constitution speak for itself. This is performance. What they’ve actually built is a legal movement that treats the First Amendment as shield for concentrated wealth while enabling government punishment of dissent, stretches the unitary executive from supervisory control into near-impunity, and resurrects pre-constitutional theories of executive sovereignty dressed in originalist vocabulary.

As I’ve documented elsewhere, the unitary executive theory is fascist bullshit. Not as epithet but as description of a governance structure asserting supremacy of executive will over legal constraint. The theory’s most extreme proponents argue that everything back to the Pendleton Act of 1883—which established civil service protections after President Garfield’s assassination—was congressional overreach into executive power. That post-Watergate reforms constraining presidential authority were unconstitutional. That independent agencies are categorically illegitimate. That the Iran-Contra investigation should never have happened.

What the fuck are these people talking about?

There is no historically defensible position that civil service protections preventing presidents from treating government as personal fiefdom represent unconstitutional constraint. The Pendleton Act responded to systematic corruption where government jobs were patronage appointments rather than merit-based. It established that you cannot fire civil servants for refusing to participate in political corruption. This wasn’t invasion of executive prerogative—it was constitutional governance preventing the executive from treating the state as personal property.

There is no morally defensible position that reforms enacted after a president used executive agencies to spy on political enemies, ordered burglaries, and obstructed justice represent illegitimate constraint on executive power. Post-Watergate reforms weren’t restrictions on legitimate authority—they were protections against its criminal abuse.

There is no intellectually defensible position that independent agencies with commissioners serving fixed terms, removable only for cause, violate constitutional structure. Madison designed the system precisely to prevent power concentration. Independent agencies embody that design by preventing presidents from treating regulatory enforcement as personal political tool.

These aren’t close questions where reasonable people examining the same evidence reach different conclusions. They’re systematic attempts to resurrect monarchical theories of executive sovereignty—divine right of kings repackaged in originalist vocabulary.

And elite institutions respond with calls for dialogue and pluralism. Stanford Law School’s ePluribus initiative presents itself as fostering “critical inquiry, constructive dialogue, and reflective and engaged citizenship.” The implication: we must engage constitutional theories arguing for presidential impunity with intellectual respect, treat them as legitimate positions within pluralistic discourse deserving serious consideration.

This is where my liberalism draws its line. I defend pluralism vigorously—the framework exists precisely because people disagree about values, policy, what constitutes good life. But constitutional structure itself is not negotiable. The framework making pluralism possible is not just another position within pluralistic discourse.

When conservative legal theorists argue the president can defy courts, that congressional oversight is illegitimate, that Watergate-era constraints were unconstitutional—they’re not offering alternative interpretations. They’re rejecting the framework. And the appropriate academic response is not respectful dialogue. It’s unequivocal rejection.

You cannot pluralism your way out of authoritarian consolidation. You cannot dialogue with people who reject the framework making dialogue legitimate. When legal theories would destroy conditions making constitutional governance possible, treating them as deserving respectful engagement normalizes what needs opposing.

This is how elite accommodation works. Not through explicit endorsement—that would be crude. But through performing neutrality between constitutional governance and its systematic dismantling. Through treating framework-destroying theories as legitimate participants in pluralistic discourse rather than dangerous nonsense requiring rejection.

Meanwhile, the “deep state” conspiracy serves as manufactured crisis justifying the power consolidation these theories enable. Like the Reichstag Fire in slow motion, it systematically delegitimizes professional civil service, independent agencies, career expertise. Each revelation of supposed resistance becomes another small fire building the case for concentrating power in a leader who can “drain the swamp.”

The purpose is transparent: strip away over 100 years of civil service protections built to check presidential corruption, lawbreaking, and political hiring. Transform professional merit-based service into personal loyalty system. And the Supreme Court—the institution supposed to defend constitutional constraints—has become primary enabler. Through cryptic shadow docket orders issued without explanation, the Court systematically reverses lower court judges protecting constitutional rights. It transfers authority from Congress to president. It treats democratic constraint on executive power as obstacle rather than command.

This is not a coherent, alternative constitutional interpretation. This is repurposing of First Amendment and separation-of-powers doctrine to punish disfavored viewpoints and consolidate presidential power. It’s anti-republican consolidation—resurrection of antebellum logic of unchecked sovereignty dressed in constitutional costume.

What’s Actually Happening

The conservative judicial project has systematically inverted First Amendment doctrine. Speech that threatens power gets maximum protection. Speech that challenges power gets minimal protection.

Corporate money in politics? Protected speech that cannot be constrained. Students protesting foreign policy? Deportable offense that government can punish through immigration enforcement.

Commercial misinformation? Protected. Labor organizing? Subject to endless restrictions.

Billionaires buying elections? Constitutional right. Immigrants expressing political views? Legitimate basis for removal.

The pattern is consistent: First Amendment protection flows to those with power. Those without power discover their speech can be punished so long as the punishment is laundered through administrative process rather than criminal prosecution.

This is not what the First Amendment means. The First Amendment exists precisely to protect unpopular speech, dissenting views, challenges to government policy. If it only protects speech that power approves, it protects nothing.

Judge Young understands this. He writes: “ICE goes masked for a single reason: to terrorize Americans and to quiesce dissent. Small wonder ICE often seems to need our respective military to guard them as they go about implementing our immigration laws. It should be noted that our troops do not ordinarily wear masks. Can you imagine a masked Marine? It is a matter of honor, and honor still matters to us. Masks are associated with cowardly desperados and the despised Ku Klux Klan. In all our history, we have never tolerated an armed, masked secret police.”

That’s constitutional reasoning grounded in American tradition. Not abstract theory about viewpoint neutrality, but visceral recognition that masked agents conducting political arrests is the behavior of tyrannies, not republics.

The First Amendment Inverted

You can see the inversion in immigration practice, where visas are denied or revoked and deportations pursued because of lawful speech or association—penalties the First Amendment forbids, laundered through claims of “discretion” and “security.” The government argues it can punish people for their views so long as it does so through immigration enforcement rather than criminal prosecution. This is constitutional evasion, not constitutional interpretation.

You can see it in the “unitary executive” theory stretched from supervisory control into near-impunity. What began as a claim that the president must be able to control executive branch officials has metastasized into the claim that congressional oversight is suspect, that judicial remedies must be narrowed, that the president’s exercise of power deserves deference precisely when he’s the one violating constitutional constraints.

This is not originalism. The Founders feared executive tyranny more than anything except mob rule. They designed constitutional structure specifically to prevent exactly what the unitary executive theory enables: concentrated power in one person’s hands, unchecked by the other branches, unaccountable to the people.

This is anti-republican consolidation—a resurrection of the antebellum logic of unchecked sovereignty dressed in constitutional costume. The same logic that once defended slavery by treating humans as property now defends executive action by treating constitutional constraints as obstacles rather than commands.

What’s Being Lost

Judge Young ends his opinion with a challenge: “I fear President Trump believes the American people are so divided that today they will not stand, fight for, and defend our most precious constitutional values—so long as they are lulled into thinking their own personal interests are not affected. Is he correct?”

Then he signs off with a note to the anonymous postcard writer: “I hope you found this helpful. Thanks for writing. It shows you care. You should.”

He adds a postscript inviting them to the courthouse to watch a trial. An act of civic faith in a moment when such faith seems naive.

But Judge Young is not naive. He understands exactly what’s happening. He writes: “No president before President Trump has so consistently and personally attacked America’s independent judiciary.”

The attacks are working. Judges receive death threats, swatting incidents, hate mail. The Speaker of the House threatens to eliminate federal courts. The president calls them radicals, demands their impeachment, tells his supporters they’re biased.

And when judges do their jobs—protecting constitutional rights, checking executive overreach, building factual records, applying law to evidence—the Supreme Court reverses them without explanation through shadow docket orders that don’t even pretend to constitute reasoned legal analysis.

This is how judicial independence dies. Not through direct assault—though that’s happening too—but through institutional abandonment. The Supreme Court, which should be the ultimate defender of judicial independence, has become its primary threat.

The Task Before Us

We face a choice between two visions of constitutional governance.

One vision: The Supreme Court as protector of executive power, using cryptic shadow docket orders to dismantle constitutional constraints while attacking lower court judges for not correctly divining unexplained commands. The First Amendment inverted to protect power’s speech while enabling government punishment of dissent through administrative process. The unitary executive stretched into presidential impunity. Constitutional structure treated as obstacle rather than command.

The other vision: The Supreme Court as protector of constitutional constraints on all power, explaining its reasoning in detailed opinions that lower courts can follow and citizens can understand. The First Amendment defending unpopular speech against government punishment regardless of the administrative mechanism used. Executive power subject to real checks through judicial review and congressional oversight. Constitutional structure as framework making liberty possible rather than impediment to effective governance.

The first vision is where we are. The second is what genuine liberal constitutionalism requires.

Restoring it means several things. First, the Supreme Court must abandon the shadow docket as primary mechanism for constitutional decision-making. Emergency orders have their place, but constitutional law cannot be made through unexplained cryptic commands issued without briefing or argument. If the justices disagree with lower courts, they owe those courts—and the country—reasoned explanation of why.

Second, the First Amendment must be restored to its proper function: protecting persons’ speech from government punishment, not insulating power from democratic accountability. This means recognizing that government cannot punish speech through immigration enforcement when it couldn’t punish that speech through criminal prosecution. The mechanism doesn’t matter. The principle is what counts.

Third, the unitary executive theory must wholesale dismissed: the president controls executive branch officials, but this doesn’t eliminate congressional oversight, doesn’t narrow judicial review, doesn’t create immunity from accountability. Executive power requires checking precisely when the executive is the constitutional violator.

Fourth, courts must be willing to hold trials and build factual records when cases permit. Judge Young’s opinion has weight precisely because he took time to establish facts through testimony and evidence. You cannot wisely apply constitutional principles to facts you haven’t established. The rush to decide everything through emergency motions may be practically necessary sometimes, but it should not become the norm.

Fifth, the legal profession and law schools must stop pretending technical solutions can address fundamentally political and constitutional crises. Reforms that improve efficiency while accepting judicial abandonment of constitutional constraints aren’t reform—they’re accommodation. The task isn’t making the system work better. It’s defending the system that’s being dismantled.

The Wire Still Holds

Judge Young asked whether Americans will stand and fight for constitutional values. The question answers itself through its asking. If judges—eighty-four years old, appointed by Reagan, with nothing to gain and much to risk—are willing to build factual records, write 161-page opinions explaining constitutional violations, and directly state that the president has violated his oath of office, then the answer is yes.

If twelve federal judges appointed by presidents of both parties are willing to publicly criticize the Supreme Court for abandoning them, then the answer is yes.

If retired Justice Breyer breaks his customary silence to defend a district court judge against unjust attack, then the answer is yes.

The lower federal judiciary is revolting. Not in the sense of being repulsive—though watching judges grovel to power would be—but in the sense of resisting institutional betrayal. They’re speaking out. They’re building records. They’re applying constitutional law faithfully even when the Supreme Court will reverse them. They’re explaining their reasoning even when higher courts won’t explain theirs.

This is what fidelity to constitutional governance looks like when the institution supposed to defend it has largely abandoned that role.

Two plus two equals four. The First Amendment protects speech from government punishment regardless of administrative mechanism. Executive power requires checking through judicial review and congressional oversight. The Supreme Court’s proper role is protecting constitutional constraints on all power, not providing cover for executive violations.

These truths hold whether or not the Supreme Court acknowledges them. Judge Young understands this. So do hundreds of district court judges doing their jobs despite institutional abandonment. So do citizens who recognize masked federal agents conducting political arrests as tyrannical regardless of what the Supreme Court says.

The wire still holds. Not because the Supreme Court is doing its job—it largely isn’t. But because enough judges, lawyers, citizens remember what constitutional governance requires and refuse to pretend otherwise.

The task is restoring a genuinely liberal constitutionalism—one that protects persons’ speech from punishment, subjects the Executive to real checks and real remedies, and treats constitutional structure as framework for liberty rather than obstacle to power.

That tradition is still here. It’s still alive. And judges like William Young prove it’s still worth defending—not because victory is assured, but because the alternative is surrender to those who’ve forgotten that constitutional governance means constraining power, not serving it.

May love carry us home. And may judges keep holding trials, building records, explaining reasoning, and reminding us that together—the people and our magnificent Constitution—we have everything required to hold the center against those who would tear it apart.

The circus continues. But this time, some performers remember the show was always supposed to serve truth, not obscure it.

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