Originalism and the Seila Law Amicus Brief, Part 1: Some Initial Thoughts on Snark, Chutzpah, Hubris, Hamartia, Generosity, and Social Media vs. Amicus Norms

I’d like to take this opportunity to apologize for some sarcasm, to explain other sarcasm and strong wording, to offer context, and to offer some initial reflections on the norms of scholarly amicus briefs, articles, and Twitter. This post is the first of a series leading up to my conversation/debate with Mike Ramsey, a co-author of the Seila Law amicus brief, on Eric Segal’s “Supreme Myths” podcast. (Part 2 on McConnell’s use of Blackstone and royal prerogative is here. I’ll post a link to the podcast on Friday here). I sincerely appreciate Mike’s willingness to have a conversation on this topic. Mike is a great guy, and we have had excellent public and private conversations about originalism (I’m an originalist only in theory, but he is an originalist in practice). He was a terrific guest in our Constitutional History Workshop at Fordham this fall, where he presented this outstanding article, “Originalism and Birthright Citizenship.” I’d like to clear the air here so that Mike and I can move forward with our conversation next week. I am sure we would anyway, but I would like to apologize and provide context.

As long as Mike has flagged problems with my tone, I also have some thoughts about their amicus brief and the style of originalist overconfidence and overclaiming. At the risk of being taken as snarky, I would identify it as a style of “originalist chutzpah.”

Eric’s podcast is for a general audience, and it is not the right forum for detailed questions about the First Congress, “the Decision of 1789,” and Blackstone. But for the narrower audience who wants such details, I will offer in this series of posts a review of my questions – frankly, some sharply pointed but necessary questions – which I hope Mike would agree that he and/or co-authors will address in some format. 

On Nov. 30th, I posted a paper “Removal of Context” (forthcoming Yale Journal of Law & the Humanities 2022) on the misuse and misquoting of historical sources by originalist scholars to support their unitary executive theory of unconditional presidential power. In a recent Supreme Court case (Seila Law v. CFPB in 2020), several of these scholars filed an amicus brief which, among other problems, misquoted and misinterpreted Blackstone, and they also relied on misinterpretations and misuses of sources from the First Congress to elaborate on the ostensible “Decision of 1789” (in my opinion, the more numerous, more serious misuse of sources, and still unaddressed by the amicus co-authors. See my paper “The Indecision of 1789” here). The Roberts Court adopted their incorrect historical arguments.

On Dec. 1st, the brief’s lead author, Ilan Wurman, replied on the Notice & Comment blog here. In mid-December, Mike Ramsey posted “A Sharp Exchange on Blackstone, Removal Power, and the Scholars’ Brief in Seila Law v. CFPB. In late December, he followed up with a series of four. First and foremost, I want to express appreciation that both Wurman and Ramsey have stepped forward to explain their interpretation and editing of Blackstone. To their credit, they both acknowledge that they misinterpreted Blackstone’s use of “disposal” of offices as “removal” from office, instead of appointments to offices at his disposal. However, they claim that this error does not affect their conclusions. I disagree – and I am relying on their co-author’s own terms about the “Schmittian” stakes: the significance of Blackstone having “listed” powers, and of the distinction between powers “defined by law” vs. the dangers of “an unchecked executive.” Michael McConnell, The President Who Would Not Be King 11, 28, 30 (2021).

I will address the larger substantive problem of misquoting Blackstone in a later post. It’s important to note that Blackstone is just one of many errors I’ve identified, and none of the amicus co-authors have addressed the even more significant errors in their longer discussion of the First Congress and the Decision of 1789. But Blackstone is the terrain they’ve chosen to defend. At this point, I think it is helpful to see the original Blackstone quote next to how they quoted it. I put the two texts side-by-side in this tweet. In this post “Removal of Context, Part III: Misquoting Blackstone in Seila Law Amicus,” I provided three reasons why they should not have changed Blackstone’s statement from “I do not know X” to a positive claim of “not X,” beyond the elementary problem of changing quotations from their original plain meaning, especially in an amicus brief.

Neither one acknowledges a substantive error, because they claim they still got Blackstone right.  Wurman conceded “I grant the matter is less clear than I originally believed,” but concluded: “In any event, I am not persuaded that the brief’s central claim about English law and practice relating to the king’s removal power is incorrect, or even materially in doubt. Jed so far hasn’t pointed to specific evidence to the contrary…” [For the record, I did point to a lot of evidence to the contrary. More below and in the next post]. 

Ramsey offers this partial acknowledgement on their misquoting Blackstone (only partial, because he still claims their “shortening” was really a “clarification” and “the Blackstone passage meant what the brief said it meant”):

That said, I agree with Professor Shugerman’s criticism to this extent. In the Seila Law brief (which I signed and assisted in drafting), this key quote from Blackstone is shortened and clarified with brackets, rather than being quoted in full with a supporting explanation. On further reflection I think that was not the right way to do it; a quotation of this importance should be set out in full rather than being edited, so that the reader can draw independent conclusions. In my scholarship (including blog posts!) I try to include long block quotes from key sources for exactly this reason (often over editors’ forceful objections). A brief, of course, comes with challenging word limits, so the editorial pressure to condense quotations is especially formidable. But here it should have been resisted. (Nonetheless, I agree with Professor Wurman that the Blackstone passage meant what the brief said it meant).

Ramsey offers these more general conclusions:

Thus while I thank Professor Shugerman for engaging in the debate and prompting this reassessment, I find his objections to the originalist account of Blackstone on removal power to be unpersuasive…

I think [my] foregoing analysis largely confirms what prior executive scholarship has said about it, and refutes the strongly worded objections Professor Shugerman has raised.

Before offering substantive responses to Wurman and Ramsey, I first want to address Ramsey’s concerns about my tone. In addition to frequently calling my exchanges “sharp” and my critiques “strongly worded,” Ramsey wrote that he found some of my engagement “snarky.” I’d like to take this opportunity to apologize for my snarkiness or sarcasm. Ramsey did not identify what he thought was snarky, but in retrospect, I think three of my tweets on Dec. 6 or 7 (here, here, and here) in response to Wurman were sarcastic or too sharp, and that tone was counterproductive. I think we are still working through the norms of social media, and I will offer more context and thoughts below. But as long as we are taking about blogs and tweets, perhaps the norms of amicus brief quotations and tone towards other scholars is also on the table today.

I offer no apologies for my “strong wording” and “sharply” contesting the way they misquoted Blackstone and the way they misused the First Congress. The misquoting and misuse of historical sources is a big deal, especially in an amicus brief to any court, and especially to the Supreme Court. If Michael is implying in his five posts repeatedly using the phrases “strongly worded” and “sharp” (as well as one reference to “snarky”) that my conduct generally has been less than collegial, I think that implication is unfair. I wish Michael had offered some context for balance, but I’ll provide it here: for months, I have been privately raising these questions with the co-authors because I sincerely tried to avoid such a spectacle.

In the winter/spring of 2020, I started reading the complete 1789 House debates with an eye towards the role of faithful execution as a “good faith” limit on presidential power, akin to “good cause.” Soon after Covid hit, I spent even more time digging into these debates and how judges and scholars had described (and misdescribed) them as a “Decision of 1789” endorsing the unitary theory.  I noticed a troubling number of discrepancies between what I was reading and how Sai Prakash had described those debates or categorized some members. I thought about publicizing these concerns, but it was Covid, so I had limited access to some of the document, and I assumed others would have limited time and access to examine these questions. It also felt unfair to confront scholars for errors at the height of Covid, when many people were juggling family and health issues. I also knew that sheltering in place with my family was not any place for an academic fight – not for me or for anyone else.

Thus, I tried to take a generous approach. I emailed Prakash some specific questions about these discrepancies in April 2020, after the oral argument in Seila Law but while a final decision was still pending. He wrote back that he would take a look and get back to me. In the meantime, I posted my paper on Decision of 1789 (updated draft, “The Indecision of 1789”), but I kept all of my notes of Prakash’s discrepancies understated and “below the line,” i.e., in footnotes. I deliberately avoided any provocative comments or accusations, and instead focused on the curious absence of Senator Maclay’s extensive diary entries from all of these scholars’ discussions. The overlooking of Maclay’s published diary does not compare to misinterpreting other sources (omission vs. commission, etc.). Around this time, one of the brief’s co-authors, Michael McConnell, generously teamed up with me to plan a conference on the histories of presidential power, designed to bring together scholars on different sides of these debates, from different disciplines. McConnell has been generous and encouraging open dialogue throughout this process. We invited Prakash, Wurman, and Ramsey to participate, and they agreed. I was hoping to have a forum to raise these questions with Prakash about the Decision of 1789, but this summer, after I raised additional questions about his misuse of sources, he changed his mind about participating and backed out. Over the past 20 months, he has not addressed any of my many questions or concerns, either while Seila Law was pending, nor after.

In the meantime, I continued working on my book on the unitary executive and my draft articles “Vesting” and “Removal of Context” on Blackstone, which led me back to the Seila Law brief and its problematic use of Blackstone. That’s when I started seeing a new round of discrepancies. I contacted Ilan by email, and we had some constructive exchanges about my draft. As part of these conversations, I took a closer look at the brief to understand the structure of their historical argument – and I saw more problems. I wrote a 15-page letter with an appendix, and I sent it to each co-author, a letter that I acknowledge may have been too long and detailed — almost as long as the substantive section of their brief. Here was my introduction:

October 13, 2021

Dear Separation of Powers Scholars amicus co-signers,

I hope you are doing well. I write to you all reluctantly. Over the past four or five years, I have had productive exchanges and engaging conversations with most of you. I have not met some of you, but I have learned so much from all of you. I begin with thanks for your generosity and your deep research on Article II and the presidency. It was not my goal or expectation to write this letter, but after some mostly constructive exchanges with a few of you, I have reached a stage where I believe it may be more helpful to share my concerns with all of you.

I write to identify some concerns about errors and misreadings of historical sources in the Separation of Powers amicus brief in Seila Law. I believe these mistakes were in good faith, surely attributable to the complexity of England’s unwritten constitution evolving and revolving through the seventeenth and eighteenth centuries, the opacity of Blackstone’s language, the fragmentary nature of the letters and congressional records in the early republic, and the unfamiliar use of phrases in the Founding Era. I acknowledge that I have made good-faith errors in an amicus brief myself, which I took a few days to acknowledge, and for which I apologized publicly and sincerely.[1] I sincerely invite your feedback, too. I have tried to write this letter fairly but candidly.

[1] Michael Ramsey, “Jed Shugerman Apologizes to Tillman and Blackman (Updated),” at https://originalismblog.typepad.com/the-originalism-blog/2017/09/jed-shugerman-apologizes-to-tillman-and-blackmanmichael-ramsey.html

I had hoped this collegial approach would be more likely to persuade, and it did persuade them on one question (“dispose of offices” means distribute, not remove from office). But in a few conversations, I realized I did not persuade them on the significance of that error, nor about my many other concerns. And no one would acknowledge the most significant errors on the Decision of 1789. I gave them a heads-up that I would be posting my draft “Removal of Context,” and I decided to make that draft read like the substance of my letter: fair but candid. Tough but fair.

On Nov. 30, about six weeks after sending my letter, I posted my draft on SSRN, and I gave Ilan a heads-up.  I posted a thread on Twitter linking the paper, with this note:

“I think these errors are in good-faith. This material is complicated, the 18th c. terms are obscure. But that’s the point: Originalists claim supremacy as the most reliable & objective method, on the eve of overturning Roe/Casey. These errors should give us all pause.”

One day later, Ilan posted his reply on Notice & Comment. On the one hand, he acknowledged the “dispose” error, but it is frustrating to see the misquoting problem treated dismissively, the other problems ignored, and to read this sentence: 

In any event, I am not persuaded that the brief’s central claim about English law and practice relating to the king’s removal power is incorrect, or even materially in doubt. Jed so far hasn’t pointed to specific evidence to the contrary.

That’s not right. I offered a lot of new evidence. See “Removal of Context” at 24-25, citing 2 Blackstone at *36 (discussion of offices as property, an “estate… either to him and his heirs, or for life, or for a term of years, or during pleasure only.”) In the original draft posted Nov. 30, I added a contemporary account from Edmund Burke and secondary sources (Chester, Aylmer, Birk, Manners and Menand) explaining the significance of these limits on royal removal. Since Nov. 30th, I have added even more context and more Blackstone material to this section, but these basic points were in my earlier drafts that I sent Ilan in October.

I also provided specific evidence about their misunderstanding of “commission” in reliance on this passage at 1 Blackstone 243: “All others acting by commission from, and in due subordination to him.” “All others acting by commission” would include judges. (See id. at 268, 351; see also 317, 334). If amicus thought (and Ramsey reiterated in December) that “due subordination” signifies removal power, can they explain how judges fit in this sentence? They still haven’t. And they haven’t replied to my evidence related to what I identified as “perhaps the most significant problem with their use of Blackstone: The English “principal secretary” is not the equivalent of the U.S. Constitution’s “principal officer.” (see my paper at 30-31).

I acknowledge that my sarcasm may not have been helpful. My twitter poll comparing their use of Blackstone’s prerogative to Shania Twain’s prerogative and Bobby Brown’s prerogative was meant as part of my prerogative “to have a little fun” instead of venting frustration directly at the dismissiveness to this explanation.

But if Mike is going to publicly call out my posts as “sharp” or “snarky,” I think he should have also acknowledged the collegial, patient, and generous way I tried to handle these concerns since April 2020, and my efforts at dialogue and inclusion in the conference we’ve planned for May. (If I may say so myself).

And as long as Mike is raising concerns about “sharp” tone and “snark,” and as long as we are talking about tone and norms, I want to highlight a passage from their amicus brief that I had flagged for them in private correspondence in October – directly but discreetly. They still haven’t acknowledged it as problematic. If they are worried about tone, I’d appreciate if they might address this passage of an amicus brief, which I would not call snark, but I think this passage commenting on our work is indicative of chutzpah and hubris, and perhaps hamartia, not only in the context of being in the middle of a brief with so many errors, but as a broader problem endemic to originalism: over-confidence about the certainty of original public meaning and their own exclusive unitary (in both senses of that word) interpretation of the Constitution.

[Update 1/8: In a December 6 post, I flagged that they made these claims in the brief: “the overwhelming weight of the evidence is that removal was part of the executive power, necessary to the President’s role of law execution, and not assigned to Congress.” p. 7; “Additionally, the power to remove principal executive officers unquestionably belonged to the executive magistrate as a necessary component of the executive power to carry law into execution.” p. 9. In this post, I also flagged this section of the brief.]

Here is the more generous way I phrased this concern in my letter (and I will post my full letter as a pdf).

In the brief’s long section on the Decision of 1789, the brief also includes language of certainty and dismissiveness of our interpretations:

“Some modern scholars have argued that the Take Care Clause supports limiting the President’s ability to remove executive officers. See, e.g., Andrew Kent [Ethan Leib, and Jed Shugerman], Faithful Execution and Article II, 132 Harv. L. Rev. 2111, 2112 (2019) (‘Our history supports readings of Article II . . . that limit Presidents to exercise their power in good faith . . . . So understood, Article II may thus place some limits on the pardon and removal authority.’). This argument fails, however, because it effectively transfers the duty to ‘take care’ from the President, to whom the Constitution gives such duty explicitly, to Congress. The argument is simply a disagreement with the Constitution.

Amicus at p. 17

This passage was not the misuse of a source, but I ask about its appropriateness in an amicus brief. Just as there is a Take Care clause, so too is there “faithful execution” language as a limit on the take care clause, and there is a Necessary and Proper Clause. Imagine if, on the other side, we had written that the unitary argument fails, because it ignored the power “to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers,” and it ignored the public meaning of legislative power to create officers and set their terms and conditions, and thus, we might have asserted that the unitary theorists’ argument is “simply a disagreement with the Constitution.” But this would have been improper. These different texts yield plausible interpretations.

As a (faint-hearted) originalist myself, I am concerned that the method of originalism is at risk of digging too deeply into its own assumptions, orthodoxies, and shibboleths. It seems indicative of a narrow, formalistic approach and excessive certainty about a singular original public meaning, even when historical sources point in other directions or at least in multiple interpretations or plural original public meanings. This language, assuming that the unitary interpretation of “take care” is “the Constitution,” is remarkable in a brief that contained many historical errors and incorrect assumptions.

I have been sharing this research and these questions for a while. I thank Mike Ramsey for posting my paper on the Originalism blog in the summer of 2020.[1] I thank Ilan Wurman for his acknowledgement of my paper and the questions it raised. I most wholeheartedly thank Michael McConnell for reaching out across the political spectrum and including me in a conference on the history of presidency. I am hopeful that this dialogue will be productive.

[1] Michael Ramsey, “Jed Shugerman on the Imaginary Unitary Executive,” Originalism Blog, June 15, 2020 at https://originalismblog.typepad.com/the-originalism-blog/2020/06/jed-shugerman-on-the-imaginary-unitary-executivemichael-ramsey.html

In my own work, I find that these historical and textual sources cut in favor of non-delegation doctrine but against unitary theory. When I have made good-faith errors in an amicus brief with co-authors, I acknowledged them. I have no reason to suspect anything other than good faith in interpreting complicated material and distant language. I have tried to engage specific authors before writing this letter with sincere hope for dialogue. I will be making these concerns more public in the near future, now that I have been in contact with some of you privately over several months, and that dialogue seems to have run its course. I acknowledge that I surely have missed additional evidence and sources on the other side, and I hope you will take these questions as good-faith engagement, too. I have tried to be balanced in this letter. I have learned from reading your work, and I hope to continue learning and seeing what evidence I have surely missed. We all have a responsibility to get the history right, and I am sure my work will benefit from your replies and your feedback. I look forward to dialogue.

Sincerely, Jed Shugerman

I hope this context helps. My sarcasm in December was inappropriate. I was frustrated especially with Prakash and all of the co-authors who had not taken responsibility. I should not have directed such frustrations at Ilan, the only one who had stepped forward and stepped up. For that, I apologize. But it is well past time for those senior scholars to be accountable for the many errors and misuses of sources they either drafted, cited, or signed onto in an amicus brief.

More to come. Next up: The combined significance of the “disposal” error and the Blackstone misquotation

Author: Jed Shugerman

Jed Handelsman Shugerman is a Professor at Fordham Law School. He received his B.A., J.D., and Ph.D. (History) from Yale. His book, The People’s Courts (Harvard 2012), traces the rise of judicial elections, judicial review, and the influence of money and parties in American courts. It is based on his dissertation that won the 2009 ASLH’s Cromwell Prize. He is co-author of amicus briefs on the history of presidential power, the Emoluments Clauses, the Appointments Clause, the First Amendment rights of elected judges, and the due process problems of elected judges in death penalty cases. He is currently working on two books on the history of executive power and prosecution in America. The first is tentatively titled “A Faithful President: The Founders v. the Unitary Executive,” questioning the textual and historical evidence for the theory of unchecked and unbalanced presidential power. This book draws on his articles “Vesting” (Stanford Law Review forthcoming 2022), “Removal of Context” (Yale Journal of Law & the Humanities 2022), a co-authored “Faithful Execution and Article II” (Harvard Law Review 2019 with Andrew Kent and Ethan Leib), “The Indecisions of 1789” (forthcoming Penn. Law Review), and “The Creation of the Department of Justice,” (Stanford Law Review 2014). The second book project is “The Rise of the Prosecutor Politicians: Race, War, and Mass Incarceration,” focusing on California Governor Earl Warren, his presidential running mate Thomas Dewey, the Kennedys, World War II and the Cold War, the war on crime, the growth of prosecutorial power, and its emergence as a stepping stone to electoral power for ambitious politicians in the mid-twentieth century.

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