Things to Read This Week (1/26/2026)
Faith, Peace, and Abuse of Power
Church Autonomy and Interlocutory Appeals, by Lael Weinberger and Branton Nestor. A persuasive argument that constitutional claims of church autonomy are designed to protect against litigation and therefore should get some of the same procedural privileges (interlocutory appeal, case management, etc.) as qualified and sovereign immunity. Persuasive doctrinally, except that I think both qualified and sovereign immunity have not been treated correctly by modern doctrine. Originally, qualified immunity didn’t really exist. And sovereign immunity was an immunity from being haled into court in the first place, enforced by not appearing. Interesting to consider whether church autonomy did or should function similarly.
The Power to Declare Peace, by Michael Stokes Paulsen. I’m not sure I agree with this one either, but never miss a Paulsen.
And once more Kate Shaw, Steve Vladeck, and I are in the New York Times talking about the Trump v. Cook argument: ‘The Justices Might Actually Have to Say No, Even to the President.’ Lines from me include: “I feel like some of the court’s critics don’t know how to take yes for an answer. Yes, I’d like to see more of this skepticism in more cases, but I’m happy to see it here.” and “One of the central tendencies of the second Trump term has been the abuse of power to reward friends and punish perceived enemies of the regime.” A short article on the latter point is coming soon.
Is the "qualified immunity didn't exist" link supposed to go to the paper about church immunity? I suspect that the wrong link was used.
Another good discussion in the NYT piece. My only lament is that you all didn't comment on the intersection between the courts recent invention of "presidential immunity" and, as Steve calls it, the "impending bear hug of the unitary executive theory". It seems, again, like this is one of the big intersections where the court doesn't spend enough time thinking about its analytical framework before deciding cases.