Conservative JuristJ. Michael Luttig - a Jeremiad

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The Absence and The Imperative of Virtue in Our Times An American Jeremiad for Thanksgiving 2025 Judge J. Michael Luttig Nov 30   READ IN APP   In these times of moral inversion in America that are trying men’s souls, we are being told by our political class and taught by their example that the timeless virtues and their opposite vices that have defined humanity throughout all of civilization no longer exist, that these virtues and these vices are indistinguishable one from the other. We are even being told and taught by our political leaders that the virtues are actually vices and the vices virtues. We must never believe what we are being told.

•  Now more than ever before, this is our responsibility to mankind: To once again celebrate the virtuous and condemn the unvirtuous.
• For to strive to be virtuous is to be human, whereas to strive to be unvirtuous is to be inhuman.
• Virtuous as distinguished from unvirtuous
• Righteous as distinguished from unrighteous
• Godly as distinguished from godless
• Moral as distinguished from immoral
• Good as distinguished from evil
• Right as distinguished from wrong
• Wise as distinguished from ignorant
• Temperate as distinguished from excessive
• Honorable as distinguished from dishonorable
• Principled as distinguished from unprincipled
• Noble as distinguished from ignoble
• Brave as distinguished from fearful
• Courageous as distinguished from cowardly
• Heroic as distinguished from unheroic
• Truthful as distinguished from untruthful

 If there were ever a dream conservative lawyer resume - former 4th Circuit Judge, Boeing General Counsel J. Michael Luttig has it.  A former Circuit Judge, White House Associate Counsel, law Clerk to Antonin Scalia and Earl Warren, Luttig is sounding the alamrm.  

Luttig has elaborated his thoughts in an article in The Atlantic, December 2025

President for Life

Donald Trump is trying to amass the powers of a king.

By J. Michael Luttig

In the normal course of history, the president of the United States is a figure who inspires optimism in the American people. The 47th president prefers to stir feelings of fear, vulnerability, hopelessness, and political inevitability—the sense that he, and only he, can rescue the nation from looming peril. Since his second inauguration, Donald Trump has seized authoritarian control over the federal government and demanded the obedience of the other powerful institutions of American society—universities, law firms, media companies. The question weighing heavily on the minds of many Americans is whether Trump will subvert next year’s midterm elections or the 2028 presidential election to extend his reign.

Josh Marshall - Brittle Wealth

 https://talkingpointsmemo.com/edblog/the-brittle-grip-of-ultra-wealth/sharetoken/3f94d540-9058-4191-970d-81ce577f8476

Former Judges, officials back fired FederalTrade Commissioner

 A group of prominent Republican lawyers and former senior government officials filed an amicus brief today urging the Supreme Court to hold that the Constitution does not permit President Trump to remove without cause Rebecca Kelly Slaughter from her position as a commissioner of the Federal Trade Commission (FTC). Amici, who have decades of combined government experience, argue that “for cause” removal restrictions like those at issue here are constitutional, as demonstrated by the original intent of the Constitution’s Framers, the long history of federal multimember regulatory agencies, and the Court’s own precedents. To hold otherwise, amici warn, would radically erode the Constitution’s checks and balances and unconstitutionally concentrate undue, excessive power — including power over the nation’s economy — in the president’s hands. The group includes 24 former White House lawyers, retired federal judges and governors, and other senior government officials who served in senior positions across six Republican presidential administrations.

Amici are represented by the Peter Gruber Rule of Law Clinic at Yale Law School and by Foley Hoag LLP.

Read the amicus brief

Scotus oks ice stops

https://embed.documentcloud.org/documents/26044229/pages/1/?embed=1

A child on the throne

 https://truthsocial.com/@realDonaldTrump/115398251623299921

Undaunted: Kentucky Fed judges lift DoD book ban

https://open.substack.com/pub/contrarian/p/undaunted-aba?utm_source=share&utm_medium=android&r=zv1g

James Comey moves to dismiss indictment

 

James Comey moves to dismiss indictment

Vladeck - The Massive Stakes of Trump v. Illinois

 Vladeck - The Massive Stakes of Trump v. Illinois

By Steve Vladeck (University of Texas School of Law - Austin)

"On Friday afternoon, the Trump administration filed its latest (29th) emergency application in the Supreme Court, this one seeking a stay of a district court temporary restraining order (TRO) that is barring the administration from deploying federalized National Guard troops into Chicago and its environs. Below, I’m going to go into much more detail on how we got here; on what the district court and Seventh Circuit each ruled; and on how the Solicitor General’s application is asking for relief based upon not just an utterly limitless view of when the President can deploy federalized National Guard personnel, but a wildly different portrayal of the facts on the ground than what either lower court specifically concluded.

But the upshot is that, more than any of the first 28 applications from the Trump administration, Trump v. Illinois is a make-or-break moment for this Court. For the Supreme Court to issue a ruling that allows the President to send troops into our cities based upon contrived (or even government-provoked) facts, even if it does so in a way that avoids formally upholding such conduct as a matter of law, would be a terrible precedent for the Court to set—not just for what it would allow President Trump to do now, but for the even more grossly tyrannical conduct it would allow him and future presidents (assuming we have any) to undertake later. If factually and legally unpersuasive domestic deployments of troops aren’t going to be a red line for the Supreme Court, what the heck will be? "- SV

Unlike the notorious anti-labor injunction of In Re Debs, 158 U.S. 564 (1895) the government here seeks to accomplish the suppression of free speech by deploying federalized soldiers rather than thousands of deputized Pinkertons. 

The hyperbolic tone of the government's application (above) can be seen here:

This case presents what has become a disturbing and recurring pattern: Federal officers are attempting to enforce federal immigration law in an urban area containing significant numbers of illegal aliens. The federal agents’ efforts are met with prolonged, coordinated, violent resistance that threatens their lives and safety and 2 systematically interferes with their ability to enforce federal law. That resistance succeeds to an alarming degree in its aim of obstructing federal agents from enforcing federal immigration law. Federal agents are forced to desperately scramble to protect themselves and federal property, allocating resources away from their law-enforcement mission to conduct protective operations instead. Receiving tepid support from local forces, they are often left to fend for themselves in the face of violent, hostile mobs. Confronted with intolerable risks of harm to federal agents and coordinated, violent opposition to the enforcement of federal law, the President lawfully determines that he is unable to enforce the laws of the United States with the regular forces and calls up the National Guard to defend federal personnel, property, and functions in the face of ongoing violence. Local political leaders immediately sue in federal district court to prevent the President from deploying federal forces to protect federal agents and enable them to enforce federal immigration law. The district court then issues an opinion granting injunctive relief against the President’s action that downplays or denies the ongoing threat to the lives and safety of federal agents, substitutes the court’s own judgment for the President’s about the need for military augmentation, and gives little or no weight to the United States’ interest in enforcing federal immigration law. The district court then countermands the exercise of the President’s Commander-in-Chief authority and projects its own authority into the military chain of command. This pattern began in Los Angeles in early June, when violent mobs targeted federal personnel and federal buildings to thwart increased enforcement efforts by Immigration and Customs Enforcement (ICE). After local and state authorities failed to stem the violence, the President called up members of the California National Guard. 

See decisions below:

Illinois and Chicago v. Trump, 7 Cir, 2025

 Illinois and Chicago v. Trump, ND Il, 2025

Chicago U.S. Appeals Court Blocks Military Deployment against immigrants

Stephen Vladeck update One First:

https://open.substack.com/pub/stevevladeck/p/184-the-massive-stakes-of-trump-v?utm_source=share&utm_medium=android&r=zv1g

In an echo of a late 19th century Chicago-centered labor dispute thousands of people, above, protest the raids and widespread arrests of suspected unauthorized immigrants in the city.

 The nation's politics were roiled for many years by the United States Supreme Court's 1895 ratification of the deployment of deputized Pinkertons to break a sympathy strike by the Eugene Debs-led American Railway Union. In re Debs remained the law until 1932 when Congress stripped the courts of jurisdiction to issue antistrike injunctions.

In the Debs case railroad workers refused to handle trains that contained cars owned by the Pullman Company of Missouri whose workers were on strike.  The rail companies refused to run trains without the valuable sleeping cars.  Interstate commerce - a peculiarly federal concern - and the mails were disrupted.  

Despite the opposition of reformist Governor John Peter Altgeld a District Judge in Chicago deputized thousands of men hired by the Pinkerton Company to block picket lines or anticompany damage.  The Court issued a strkiningly broad injunction which the United States Supreme Court ratified in 1985 in the appeal by Debs of his contempt conviction. The District Judge's order provided:

Eugene V. Debs and all other persons are hereby enjoined and restrained from sending out any letters, messages, or communications directing, inciting, encouraging, or instructing any persons whatsoever to interfere with the business or affairs, directly or indirectly, of any of the railway companies hereinabove named, or from persuading any of the employees of said railway companies while in the employment of their respective companies to fail or refuse to perform the duties of their employment.

Not until the 1932 Norris LaGuardia Act were judges deprived of jurisdiction to issue such orders. 

But today we see an echo of the Debs era because  the President - over the oppostion of the Illinois governor - has deployed federalized troops to patrol the streets of Chicago.  The Debs order - despite its overreach - was based on legitimate federal concerns.  But Trump has so far been unable to show a similar inability of state and local police to maintain order.

The United States Code, 10 USC 12406  provides

Whenever—

(1) the United States, or any of the Commonwealths or possessions, is invaded or is in danger of invasion by a foreign nation;

(2)

there is a rebellion or danger of a rebellion against the authority of the Government of the United States; or

(3)

the President is unable with the regular forces to execute the laws of the United States;

the President may call into Federal service members and units of the National Guard of any State in such numbers as he considers necessary to repel the invasion, suppress the rebellion, or execute those laws. Orders for these purposes shall be issued through the governors of the States

In September the Trump administration launched “Operation Midway Blitz”.  In the view of Illinois Governor J.B. Pritzker  ICE is causing mayhem, chaos and confusion. He is warning that other cities could soon face the same fate.

"Masked federal agents from ICE and CBP are on the ground terrorizing our communities with tear gas and rubber bullets, and some are wearing camouflage uniforms that could easily be mistaken for the military. It is Trump and Miller's agents, were operating like they are his own secret police, harassing civilians, tear gassing communities and arresting journalists and grabbing people in the street to ask them for their papers based on the color of their skin. This is intentional," Pritzker said.

The Governor challenged the federalization of the Illinois National Guard of which the Governor the Commander.  A District Court Judge ordered a halt to the deployment of federalized guardsmen.  On appeal the Seventh Circuit Court of Appeals in Governor and Mayor v. Trump  ruled against the deployment, saying

neither of the predicate conditions for federalization proffered by the administration was present in Illinois: There was insufficient evidence of rebellion or a danger of a rebellion, 10 U.S.C. § 12406(2), nor was there sufficient evidence that the President was unable with the regular forces to execute the laws of the United States, see id. § 12406(3).  

 White House spokeswoman Abigail Jackson promised appeal, saying

“Amidst ongoing violent riots and lawlessness, that local leaders like [Gov. JB] Pritzker have refused to step in to quell, President Trump has exercised his lawful authority to protect federal officers and assets.  “President Trump will not turn a blind eye to the lawlessness plaguing American cities.” 

The governor responded that

"One thing is evident: this effort to deploy troops in American cities is not normal. There is no justification for such a deployment, and it echoes the rise of authoritarian regimes throughout world history. Illinois is not a place you can conquer. And our people are not your subjects. Period." 

In order to overturn the District and Circuit judges' rulings the Trump administration will have to persuade a majority of the Supreme Court that federalization of state militia was necessary to "execute the laws of the United States".   They will have to do this in the face of a unanimous Circuit panel finding that

The district court provided substantial and specific reasons for crediting the plaintiffs’ declarations over the administration’s, and the record includes ample support for that decision.

- GWC

October 16, 2025 

  

 

 

 

Bold Brown Jackson dissents - Adam Liptak - NY Times

Bold  Brown Jackson  dissents - Adam Liptak - NY Times

By Adam Liptak

Reporting from Washington July 5, 2025

July 5, 2025\

• Justice Ketanji Brown Jackson wrote just five majority opinions in the Supreme Court term that ended last month, the fewest of any member of the court. But her voice resonated nonetheless, in an unusually large number of concurring and dissenting opinions, more than 20 in all.
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• Several of them warned that the court was taking lawless shortcuts, placing a judicial thumb on the scale in favor of President Trump and putting American democracy in peril. She called the majority’s opinion in the blockbuster case involving birthright citizenship, issued on the final day of the term, “an existential threat to the rule of law.”Justice Jackson, 54, is the court’s newest member, having just concluded her third term. Other justices have said it took them years to find their footing, but Justice Jackson, the first Black woman to serve on the court, quickly emerged as a forceful critic of her conservative colleagues and, lately, their approach to the Trump agenda.

Supreme Court appears ready to gut 1965 Voting Rights Act - Amy Howe, Scotusblog

 

Twenty five  hundred years ago. the Greek philosopher Aristotle studied law.  He concluded, in his book Rhetoric*, that text could not anticipate every cirumstance presented.  The concept of equity recognized that principles of fairness could, in certain cirumstances, override text.

In the Anglo-American tradition the courts of equity have demonstrated flexibility in cases where the written law is inadequate.  The beneficiaries were often the weak: women, children, the disabled. Our Constitution, in Article III,  recognizes the two great divisions in the English tradition.

In the latest attack on minority voting strength - Louisiana v. Callais - the Supreme Court heard the argument of objectors to the remapping of Congressional Districts in Louisiana to afford the 30% Black citizens of Louisiana a second Black majority district of the State's nine. The argument of the objectors can be summed up in one sentence cited by Howard Law professor and former NAACP G.C. Sherrilyn Ifill. She writes that in the view of the objectors to the Voting Rights Act remedy:

The only way to stop discrimination against Black voters is to stop discriminating against white voters in remedying the initial violation.
 This case is about appeasing white voters, and nothing else.  

Section 2 of the 1965 Voting Rights Act is result-oriented: it looks to whether political processes have produced a circumstance (such as by `gerrymandering') in which elections "are not equally open to participation by members of a class of citizens protected by subsection (a) in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice" 

The provision met with a predictably hostile reception yesterday in the United States Supreme Court.  As long-time Supreme Court observer Amy Howe concluded, the Supreme Court appears ready to gut the 1965 Voting Rights Act  - Scotusblog.

In the law we generally consider classifcation by race to be arbitrary - i.e. without ground in reason - because we hold that "all men are created equal".  But in certain circumstances the Supreme Court majority has recognized that the fact of racial bloc voting has created representation that leaves one group under-represented.  See Allen v. Milligan (2022) "

In Allen Associate Justice Brett Kavanaugh , observed that  "the text of §2 establishes an effects test, not an intent test". But he seemed yesterday to be prepared to abandon Allen, saying at oral argument "[T]his Court’s cases in a variety of contexts have said that race-based remedies are permissible for a period of time, sometimes for a long period of time, decades in some cases, but … they should not be indefinite and should have a[n] end point.”

It is remarkable that those who found the racially gerrymandered districting unobjectionable now assert that colorblindness bars the remedial devices that make our elected representative bodies more reflective of our actual social divisions than ever before.  We cannot, by a hand wave, eliminate the effrects of centuries of open racial discrimination.  It takes race and ethnic awareness to assure that our multi-racial, multi-ethnic nation is reflected broadly in our governing bodies.

- GWC

* "Equity’s existence partly is and partly is not intended by the legislators; not intended where they have noticed no defect in the law; intended where they find themselves unable to define things exactly, and are obligated to legislate as if  that held good always  which in fact only holds good usually."   Aristotle- Rhetoric - Book I, para 13

The Radical Fund Behind Brown v. Bd. of Ed. - reviewed by Michelle Adams

 The Radical Fund Behind Brown v. Bd. of Ed. - review by Michelle Adams

For the Balkinization symposium on John Witt, The Radical Fund: How a Band of Visionaries and a Million Dollars Upended America (Simon and Schuster, 2025).

Michelle Adams [U Michigan Law School]

John Fabian Witt’s terrific new book, The Radical Fund: How a Band of Visionaries and a Million Dollars Upended America, explores critical and urgent moral terrain—the “distinctly modern struggle for democratic power.” Witt tells a powerful and underappreciated story of the extraordinary experiment of the American Fund for Public Service—the so-called Garland Fund—and its wager that radical philanthropy might become a lever for social transformation.

The story opens with Charles Garland’s decision in 1920 to give away the inheritance he deemed morally tainted. Roger Baldwin, soon to be the founder of the ACLU, convinced Garland that his money could seed “a gamble in human nature,” an experiment in the uses of wealth for democracy. Baldwin envisioned the Fund not as a conventional foundation but as an engine for “fundamental transformations”—a tool to challenge “the present means of producing and distributing wealth.” Baldwin thought the central question of the time was “how to build democracy for an immense, racial divided country in the age of inequality, mass production, and mass communications.” Sound familiar?

For many readers, the Garland Fund may have been only a faint historical footnote. If they had heard of it at all, it was likely because its dollars helped finance Nathan Margold’s audacious blueprint for the NAACP’s legal campaign against the “unequal and inequitable distribution of public school funds as between the races.”

Penumbras, Presidential Immunity, and Pure Politics at the Supreme Court By Eric Segall //Dorf on Law

 

Penumbras, Presidential Immunity, and Pure Politics at the Supreme Court

By Eric Segall - September 25, 2024

 

For many decades, conservative judges, law professors, and political pundits ridiculed Justice Douglas' reasoning in the landmark case Griswold v. Connecticut. While striking down a statute that forbade all contraception use and prohibited doctors from giving advice about contraception, Justice Douglas relied on six constitutional provisions to find a right to privacy in the Constitution because "specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance." A few years later, Roe was based on the right to privacy. 

The disgust on the right for Douglas' penumbras and emanations reasoning has been severe, often cruel, and always dismissive. One commentator observed that "perhaps the most important and puzzling spatial metaphor in American constitutional law is Justice Douglas' 'penumbra' from Griswold v. Connecticut."

In one of the most famous law review articles ever written, Robert Bork, then a law professor, compared constitutionally protecting the non-textual right to privacy to people raising constitutional objections to paying higher prices for electricity from a public utility. He said there was no way to objectively say one claim was more important than the other. He criticized Douglas' reasoning in Griswold as follows:

The Griswold opinion fails every test of neutrality. The derivation of the principle was utterly specious, and so was its definition. In fact, we are left with no idea of what the principle really forbids. Derivation and definition are interrelated here. Justice Douglas called the amendments and their penumbras "zones of privacy," though of course they are not that at all. They protect both private and public behavior and so would more properly be labelled "zones of freedom." If we follow Justice Douglas in his next step, these zones would then add up to an independent right of freedom, which is to say, a general constitutional right to be free of legal coercion, a manifest impossibility in any imaginable society.

A consistent talking point at Federalist Society conferences and among constitutional conservatives over the last forty years has been the alleged absurdity of the penumbras and emanations language in Griswold. Of course, most people think that states should not be banning contraception, but the right to privacy was the cornerstone of Roe, and that put a huge target on the back of this metaphor. Professor Robert Dixon wrote: “The actual result of Griswold may be applauded, but was it necessary to play charades with the Constitution?” Another has said, "Griswold, though plainly an incidence of judicial activism, was not an unpopular decision."

The penumbras language from Griswold, whatever folks thought about the ultimate holding, became the most important symbol to legal conservatives of the alleged overreaching and judicial activism of the Warren Court. Most law students in the 1980's and 1990's would likely have heard from conservative professors that Griswold was a terrible decision and an interpretative abomination because of the penumbra language. Those students are today's judges and academics.

KEEP READING

Brennan Center: National Security Memorandum 7 targets nonprofits

https://www.youtube.com/watch?v=8qDS3pAw-30&pp=ygULamIgcHJpdHprZXLSBwkJ_AkBhyohjO8%3D

Brennan Center: National Security Memorandum 7 targets nonprofits

In late September, President Trump signed an executive order purporting to designate “Antifa” as a “domestic terrorist organization.” A few days later, he issued National Security Presidential Memorandum 7 (NSPM-7) on Countering Domestic Terrorism and Organized Political Violence. This analysis evaluates the claims made in these documents and their potential damaging effects, drawing on the Brennan Center’s decade of work on the government’s framework for responding to terrorism, both foreign and domestic.

Both the order and the memo are ungrounded in fact and law. Acting on them would violate free speech rights, potentially threatening any person or group holding any one of a broad array of disfavored views with investigation and prosecution. 

This is a particularly unhinged Trump initiative which links the killers of Charlie Kirk and the attempted assassination of Donald Trump at a rally to a wide array of  "criminal and terroristic conspiracies".

- GWC

Countering Domestic Terrorism and Organized Political Violence

Presidential Memoranda
September 25, 2025

Section 1.  Domestic Terrorism and Organized Political Violence.  Heinous assassinations and other acts of political violence in the United States have dramatically increased in recent years.  Even in the aftermath of the horrifying assassination of Charlie Kirk, some individuals who adhered to the alleged shooter’s ideology embraced and cheered this evil murder while actively encouraging more political violence.  This was preceded by the 2024 assassination of a senior healthcare executive and the 2022 assassination attempt against Supreme Court Justice Brett Kavanaugh.  Two separate assassination attempts against my own life in less than 3 months took place during the 2024 Presidential election cycle.  Riots in Los Angeles and Portland reflect a more than 1,000 percent increase in attacks on U.S. Immigration and Customs Enforcement (ICE) officers since January 21, 2025, compared to the same period last year.  Just yesterday, a shooting targeting an ICE facility in Dallas resulted in multiple casualties.  Separate anti-police and “criminal justice” riots have left many people dead and injured and inflicted over $2 billion in property damage nationwide.

This political violence is not a series of isolated incidents and does not emerge organically.  Instead, it is a culmination of sophisticated, organized campaigns of targeted intimidation, radicalization, threats, and violence designed to silence opposing speech, limit political activity, change or direct policy outcomes, and prevent the functioning of a democratic society.  A new law enforcement strategy that investigates all participants in these criminal and terroristic conspiracies — including the organized structures, networks, entities, organizations, funding sources, and predicate actions behind them — is required. 

Sec. 2.  Investigating Domestic Terrorist Organizations.  (a)  The National Joint Terrorism Task Force and its local offices (collectively, “JTTFs”) shall coordinate and supervise a comprehensive national strategy to investigate, prosecute, and disrupt entities and individuals engaged in acts of political violence and intimidation designed to suppress lawful political activity or obstruct the rule of law.  This strategy shall include the investigatory and prosecutorial measures set forth in this section.

Sherrilynn Ifill - 14th Amendment Center

 https://www.instagram.com/the14thcenter/?hl=en