A “Bombshell” Or a Dud?

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Yesterday, the New York Times published an article, titled Originalist ‘Bombshell’ Complicates Case on Trump’s Power to Fire Officials. Adam Liptak highlights a new essay by UVA Law Professor Caleb Nelson that casts doubt on the claim that the Article II Vesting Clause includes a removal power.

Nelson did not say anything particularly novel in this 3,000 word essay. Indeed, he cites the work of scholars like Jed Shugerman and Julian Davis Mortenson who have written hundreds of pages on this issue in recent years.

So why did Nelson warrant a glowing profile in the newspaper of record? Simple: a law professor with conservative credentials opposed conservative jurisprudence. Here, a Thomas clerk published a short essay that bucks the conventional wisdom on the right. Will Baude hailed the essay on BlueSky as a “bombshell.” I think it is fitting that the Times quoted Baude’s announcement, as he was the subject of a similarly positive NYT piece by Adam Liptak in 2023.

Barely two years ago, Will and his co-author, Michael Stokes Paulsen wrote a 150-page article arguing that Donald Trump was unquestionably disqualified by the presidency under Section 3. (Seth Barrett Tillman and I were on the other side of that debate.) In the wake of January 6, there were many scholars who had written that Trump was disqualified. But what made the Baude/Paulsen article stand out was their conservative credentials. Baude, in particular, had clerked for Chief Justice Roberts.

I think there is something of a pattern. The mainstream media will elevate originalism when it bucks conservative orthodoxies. But when originalism unquestionably supports a conservative position, it is described as fringe and radical.

Ultimately, I’m not sure that Nelson’s article moves the needle, at all. I don’t need to remind everyone that the Baude and Paulsen position received zero votes at the Supreme Court. Justice Thomas made up his mind about Humphrey’s Executor a long time ago. He stated the issue plainly in Seila Law.

I don’t think Justice Thomas will wake up and say, “my goodness, because of a 3,000 word essay by a law professor I hired three decades ago, I have to radically alter everything I think about the separation of powers.” A former Thomas clerk once told me a story of how he tried to persuade the boss that he was wrong about some case. Thomas sat patiently and listened as the clerk presented his argument. After the clerk was done, Thomas said he felt even more convinced that his initial position was correct.

I think it far more likely that Thomas cites, and continues to cite, another former clerk who is also on the University of Virginia faculty: Sai Prakash. Indeed, Thomas cited Prakash in Seila Law:

1 For a comprehensive review of the Decision of 1789, see Prakash, New Light on the Decision of 1789, 91 Cornell L. Rev. 1021 (2006).

Why is it that Prakash, whose credentials are very close to those of Nelson, doesn’t even merit a mention by the Times? Prakash has been engaging in a lengthy debate with Mortensen and Shugerman on this issue. Indeed, Prakash co-authored an article with another member of the UVA faculty, Aditya Bamzai, in the Harvard Law Review.

Still, all the focus now is on Nelson, who wrote a short essay. If you read down to the last paragraph of Nelsons piece, you will see how tentative the claim is:

I am an originalist, and if the original meaning of the Constitution compelled this outcome, I would be inclined to agree that the Supreme Court should respect it until the Constitution is amended through the proper processes.  But both the text and the history of Article II are far more equivocal than the current Court has been suggesting.  In the face of such ambiguities, I hope that the Justices will not act as if their hands are tied and they cannot consider any consequences of the interpretations that they choose.

This is not exactly lion-hearted originalism. It isn’t even faint-hearted originalism. Call it “inclined-to-be” originalism?

Ultimately, I think this new entry to the field will not be a bombshell, but will be a dud.

The post A "Bombshell" Or a Dud? appeared first on Reason.com.

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