Law office “history” and John Roberts’s will to power

Adam Liptak points out that a new paper written by a conservative originalist demonstrates that UNITARY EXECUTIVE THEORY has no serious historical basis, just like it has no basis in the text or structure of the Constitution [gift link]:

The Supreme Court will hear arguments in December about whether President Trump can fire government officials for any reason, or no reason, despite laws meant to shield them from politics.

There is little question that the court will side with the president. Its conservative majority has repeatedly signaled that it plans to adopt the “unitary executive theory,” which says the original understanding of the Constitution demands letting the president remove executive branch officials as he sees fit.

But a new article, from a leading originalist law professor, has complicated and perhaps upended the conventional wisdom. The legal academy treated the development like breaking news.

“Bombshell!” William Baude, a law professor at the University of Chicago who himself is a prominent originalist, wrote on social media. “Caleb Nelson, one of the most respected originalist scholars in the country, comes out against the unitary executive interpretation” of the Constitution.

Professor Nelson, who teaches at the University of Virginia and is a former law clerk to Justice Clarence Thomas, wrote that the text of the Constitution and the historical evidence surrounding it grants Congress broad authority to shape the executive branch, including by putting limits on the president’s power to fire people.

At this point, I would generally go into a rant about how this doesn’t matter because Supreme Court “originalists” don’t care about history in any case that involves any kind of ideological and/or partisan commitment. But in this case Liptak with more dispassion does it himself:

Justice Brett M. Kavanaugh, in a concurring opinion last year, listed him among “respected scholars” who are “continuing to undertake careful analysis” about the role tradition plays in determining the Constitution’s original meaning. Justice Thomas cited one of his articles six times in a single concurring opinion in 2023 and two of his articles in another concurring opinion that year.

Still, the new article is unlikely to have a practical effect, and Professor Nelson acknowledged that the Supreme Court “appears to be moving toward a sweepingly pro-president position.”

Indeed, one of Chief Justice John G. Roberts Jr.’s signature projects since he joined the court 20 years ago has been to grant the president more power to fire executive officers.

But Nelson’s scholarship will serve as useful window dressing when Roberts needs to hold that whatever loopholes exist in Trump v. Article I suddenly apply during Democratic presidencies.