Things to Read This Week (4/27/26)

Old Textualism, New Juristocracy, by Marco Basile: On unwritten law at the founding, and the slow rise of both textualism and judicial supremacy. Still more fodder for the post-Erie movement.

Here is American Fragmentation and American Law, some timely remarks by Sam Bray: “This paper considers whether cultural and moral fragmentation in American society is a challenge for American law, and it advances three theses. First, the United States is morally fragmented, but that is tolerable, because a liberal legal order can exist without a consensus about moral norms. Second, there are two preconditions for a liberal legal order that are fading in the United States: a culture of persuasion and a shared expectation of our society as a going concern. Third, we have been here before, and sometimes it ended well.“

And continuing (and perhaps winding down) the conversation on the Clean Power Plan memos, I was in the New York Times on Friday titled Don’t Blame John Roberts for the Shadow Docket. (I was hoping for “the shadow docket has put the conflicts on superspeed.”) Meanwhile, Michael McConnell is in the Washington Post, with The Supreme Court’s not-so-sinister shadow docket.