A Substack writer assumes the wrongness of NR’s position as his starting point rather than explaining why it is so.
A Substack writer named Mike Brock has taken issue with National Review’s editorial on the Trump administration’s fight with D.C. federal district Judge James Boasberg over Venezuelan gang deportations, a topic that Andy McCarthy has covered extensively and addresses again this morning. Brock’s essay is an object lesson in how not to make an argument, and an excellent example of Bulverism, the habit of assuming the wrongness of the opposing position as your starting point rather than explaining why it is so.
Brock’s thesis is that our editorial “attempts to place constitutional interpretation (the core function of the judiciary) on the same moral plane as defying court orders (a direct assault on constitutional governance)” and “provides intellectual cover for the dismantling of judicial review while pretending to defend it.” But this assumes that every judicial act is simply an arguable form of “constitutional interpretation.” Of course, our editorial argues that the judiciary has, and in our system must have, the final say in interpreting the Constitution. That is so partly because it inheres in the judicial power granted by Article III, and in good part just because acknowledging that the political branches can ignore the courts could in practice swallow up that power: “once the principle is established in the public mind that such things can be done, it will be a hard principle to limit.” In so arguing, we cited Democratic threats to ignore the courts after Roe v. Wade, which Brock (as he does throughout his essay with regard to anything that happened before January 20, 2025) entirely ignores. But in the famous words of Justice Robert Jackson, “we are not final because we are infallible, but we are infallible only because we are final.” When the courts seize powers never granted them in the Constitution, that is a usurpation of power – and arguably an even worse one than executive overreach, precisely because there are so very few remedies for it.
We only just recently editorialized about another dispute with D.C. federal district Judge Amir Ali over USAID funding, in which the administration had stronger grounds to complain of the judge’s behavior. The two quarrels are plainly part of the same overall controversy and explicitly informed our critique of Chief Justice John Roberts for failing to use his own Court’s powers to rein in rogue judges, yet Brock ignores that entire context. He goes on: “The intellectual dishonesty becomes even more apparent when they suggest that Roberts ‘can best defend his branch’s legitimate powers by tending to his own house.’ Translation: The Chief Justice should remain silent while the executive branch threatens to impeach judges for ruling against it.” Well, no, we said in the previous sentence that “as for Chief Justice Roberts, he did not help matters by lacking the courage to nip judicial adventurism in the bud in the USAID case.” Also, as Brock seems unaware, the executive branch cannot impeach anybody for anything, ever. Only Congress does that. The most the executive can do is request that Congress act. In short, Brock draws an equivalence between a court using its powers and the executive just being a blowhard on matters outside of his own powers.
Brock complains that it is “breathtaking” that we “outline scenarios where ‘the executive may have a persuasive case for defying a judicial order.’ This isn’t constitutional analysis; it’s a how-to guide for dismantling judicial review.” Does Brock disagree that any of these scenarios (such as a judge ordering things far outside the judicial power that are irreparable and thus immunized from appeal) create serious separation of powers problems? Does he insist that there is no possible thing a judge could say that the executive may resist, even temporarily while petitioning the appellate courts? He does not say; he simply assumes the wrongness and proceeds to cast about for motives.
In his one nod to the possibility that there has been history before 2025, Brock asks:
Where was their righteous indignation when Trump declared he would have the “absolute right” to pardon himself? Where were their stern editorials when he suggested postponing the 2020 election? Where was their principled conservatism when he pressured state officials to “find” votes? The answer is clear: they were busy constructing elaborate justifications, finding ways to normalize the indefensible, and creating moral equivalencies that allowed their readers to pretend constitutional erosion was just another policy disagreement.
If you go looking further for his supporting evidence in prior National Review editorials, you will not find it. He might have tried reading them. We have editorialized numerous times in the past decade on the proper and improper uses of the pardon power by both Trump and Joe Biden; at the end of his first term, we even argued for reforming or limiting the pardon power as a result. Even a casual perusal of our editorials since the 2020 election (let alone what has been published here by individual writers) would convince any person of minimal intellectual integrity that we take very seriously the falsehood of Trump’s notion that Georgia was stolen from him in 2020, and the improper methods he used to reverse that – the very opposite of “elaborate justifications.” (Of course, the whole reason that controversy happened is that Trump never did take a single step to postpone the 2020 election).
An argument is a connected series of statements intended to establish a proposition. This is just contradiction.