New Episode: Always Already
Slaughter and Cook
Just a few paces behind the Court’s opinions, the Divided Argument episode Always Already is up:
The big opinions are coming fast and furious as the Term ends. This episode, we take on two related cases from the penultimate opinion drop day: Trump v. Slaughter, which overrules Humphrey's Executor and clears away for-cause protection for the independent agencies, alongside its interim-docket companion Trump v. Cook, where the very same logic somehow spares the Federal Reserve. The big question: if the President can fire an FTC commissioner at will, what actually makes the Fed different — is "history" doing the work, or is the Court just saving the bond markets? Along the way: Heidegger's "always already," whether the metaphor of a living tree is consistent with originalism, a Goldilocks definition of "cause," the Chief leaning on his own unworkable precedents, the Ex parte Young mystery that keeps escaping the Court's grasp, and the first appearance of the "interim docket" in the U.S. Reports.
The birthright citizenship episode will be up soon. In the meantime, comments are open!
Regarding Kant, I think it's really important to distinguish two questions: does the critique or other works of his contribute valuable ideas that are worth knowing (for reasons besides intellectual history) to philosophy and does it make sense to actually read Kant yourself. I think the answer to the first question is certainly yes -- while one can plausibly argue Being and Time didn't -- but the answer to the second question is far less clear.
After all, we don't doubt Newton contributed massively to our understanding of math and physics but that doesn't mean there is any benefit (other than historical) to reading his original work in the Principia.
People really dislike this kind of conclusion. Something in our physchology makes us want to treat originals with some kind of special respect. It's the same reason we will go to a museum to see the original Mona Lisa but if an exceptionally skilled artist creates a forgery we can't distinguish we don't treat that the same -- and we certainly don't prefer semi-forgeries that improve aspects of the original. But I think we need to set aside -- or at least understand they aren't based in intellectual efficency -- those kinds of feelings when judging how to spend our limited time. Having worked as a teaching assistant in a number of moral philosophy classes my sense is that the most valuable ideas in Kant have been extracted and are better digested without reading the original (who cares you don't know exactly what some long dead guy thought).
And yes, it is certainly true that people have developed lots of interesting philosophical ideas in the course of reading and interpreting thinkers like Kant and Plato. But that doesn't show the insight came from the work anymore than the story you create based on shapes in the clouds derives from insight in the clouds. Had that same effort been devoted to understanding some modern philosophical papers I expect even more useful insight would have arisen.
Sort of a strange episode in that you spend a lot of time on whether Slaughter will have a lot of impact or not and whether it has been target (via conservative legal scholarship and conservative jurisprudence) for 40+ years, and not a lot of time about who has the better argument about the underlying article II power and things like the decision of 1789. In a round about way you sort of imply you won't talk about that because there is a lot of well written and convincing scholarship and don't want to wade into those weeds. On the other hand that makes this case that much harder to swallow since it went "all" in on the unitary executive theory. If writing an originalist opinion, it seems like the more prudent thing to do would have been to acknowledge the conflicting historical record and say that in some cases removal power can be curtailed and some cases it can't. Could even openly admit that future cases might be harder to decide based on historical record.
By deciding these big questions in big sweeping ways "no ifs, ands, or quasis"* (*conditions may apply, see Cook) it just seems very anti-constitutional and pro-juristcratic (is that a word?). It makes me very uncomfortable that the Roberts court has seemingly tended to enhance the power of the less democratic institutions---toward more judicial power and more executive power---and limit the power of the more democratic institution---congress. Completely unconvinced by any of the reasons why the fed is different. Even if you accept Will's proposal that the fed is the "third bank of the US" it seems entirely unconvincing that the constitution means something along the lines of: the constitution doesn't specify an independent national bank but it implies it, but no other independent executive agencies.
Appreciate Dan bringing up what other's have called the "Roberts 2-step" (maybe should be the Roberts n-step") where it seems he spends several opinions making the aspects of a big area of law sound faulty and unworkable and then looks back and says "obviously this must happen, look how faulty and unworkable the foundations are!". This would be a much easier thing to swallow if it was justices appointed by different parties hacking away at the pillars of support, or even just a different justice!