By Daniel M. Klerman

Judges appointed by President Trump are more likely to vote in favor of the government in cases challenging the second Trump administration's immigration policies. While Trump's Supreme Court nominees behave like other Republican nominees on the Court, Trump's lower court nominees are twice as likely to vote in favor of the government as nominees of other Republican presidents; in contrast, other Republican nominees to the lower courts are statistically indistinguishable from Democratic nominees. The difference between Trump nominees and other judges is driven almost entirely by judges 55 years old or younger, who may be influenced by the prospect of promotion to the Supreme Court.

 USC CLASS Research Paper No. 2522, 2025, 

By Bruce Ackerman

From the days of the Federalist Papers and Marbury v. Madison, the Court’s commitment to reasoned elaboration of constitutional principle has served as the justification for its role in the system of checks-and-balances. Yet the very foundations of judicial legitimacy are at stake in two cases that the Roberts Court has scheduled for expedited consideration during the early months of its 2025-26 Term. These cases deal with the continuing legitimacy of Humphrey’s Executor’s unanimous decision upholding the constitutionality of “independent agencies” – most notably, the Federal Reserve and the Federal Trade Commission. This prospect has provoked a great deal of scholarly debate over the implications of relatively recent decisions by the Roberts Court on these issues. In contrast, my essay puts these decisions in a larger framework – emphasizing the crucial role played by the President and Congress in constructing “independent agencies” during the half-century preceding Humphrey’s unanimous decision upholding their constitutionality in 1935. It demonstrates that, after the breakthrough creation of the Interstate Commerce Commission by the Cleveland Administration, every President – from Theodore Roosevelt through Woodrow Wilson through Herbert Hoover – gained Congressional support for the creation of new independent agencies self-consciously organized to restrict presidential power in order to assure the deployment of impartial and expert regulation over crucial areas of socio-economic life. Justice Sutherland’s unanimous opinion of 1935 represents the self-conscious recognition of the legitimacy of this bipartisan affirmation of the role of expertise in modern government – and should not be cast aside without a principled confrontation with its historical foundations in American constitutional development.

Yale Law School, Public Law Research Paper, 2025

Power of Federal Judiciary Over Legislation by J. Hampden Dougherty is a compact but weighty work first published in 1912, offering a vigorous defense of the judiciary’s power to strike down unconstitutional laws. Written during an era of growing skepticism toward centralized authority, Dougherty’s book situates judicial review as an indispensable safeguard built into the American constitutional system. He begins by tracing the intellectual and historical roots of this power, arguing that it was not an accidental byproduct but an intentional creation of the framers. Drawing on the Constitutional Convention debates and the Federalist Papers—particularly Alexander Hamilton’s famous exposition in Federalist No. 78—Dougherty insists that the courts’ ability to declare legislative acts void is central to maintaining the supremacy of the Constitution.
Read today, Dougherty’s work resonates in a world facing renewed tensions between legislatures and courts. The questions he grappled with—how much power unelected judges should have over elected lawmakers, whether the judiciary can check majoritarian excesses without overstepping, and how to reconcile constitutional text with evolving social norms—remain pressing in 2025.
In an age of polarized politics, social media-driven outrage, and legislative gridlock, the themes of Dougherty’s book speak directly to contemporary challenges. His work encourages a sober reflection on whether judicial power is a threat to democratic self-government or an essential defense against its excesses.
More than a historical artifact, Power of Federal Judiciary Over Legislation functions as a mirror for modern constitutional crises. It underscores how the tensions between law and politics, and between judicial restraint and activism, are not new but woven into the fabric of American governance. As debates continue in 2025 about court-packing, term limits for justices, and the appropriate scope of judicial intervention, Dougherty’s concise and forceful treatise offers both a defense of the judiciary’s traditional role and a challenge to ensure it remains a stabilizing rather than destabilizing force in constitutional democracy.

Read-Me.Org Inc. New York-Philadelphia-Australia. 2025. 108p.

By Gilbert E. Roe

The judiciary alone, of all our institutions of government, has enjoyed for many years almost complete freedom from hostile criticism. Until very recently, this branch of our government stood above the legislative and executive departments in popular esteem. Unresponsive, and unresponsible to the public the courts dwelt in almost sacred isolation. Within the last two or three years the public has begun to turn a critical eye upon the work of the judges. The people in their struggle to destroy special privilege and to open the way for human rights through truly representative government, found barrier after barrier placed across the way of progress by the courts. Gradually the judiciary began to loom up as the one formidable obstacle which must be overcome before anything substantial could be accomplished to free the public from the exactions of oppressive monoplies and from the domination of property interests.

B.W. Huebsch, 1912, 253 pages