Lots of concern about the so-called AI psychosis.  

Personally, I see little difference.

A Response to Dr. Heather Cox Richardson's "I Am Not Giving Up Hope" post

 December 11, 2025

 

Dr. Heather Cox Richardson

heather.richardson@bc.edu

 

Dear Professor Richardson:

 

I read your “Letter” and watch your YouTube videos religiously, and I agree with the overwhelming majority of your positions. That’s why I found myself torn by your recent video on the unitary executive and presidential immunity. My concern—one you often raise yourself—is what happens when the shoe is on the other foot.

1. Presidential Immunity: A Necessary Shield vs. Broken Checks

The structural need for some immunity is undeniable. Consider the inverse scenario: a genuinely progressive president (one can only hope…) facing a hostile Congress and a set of state attorneys general committed to stopping them at every turn. Without some degree of immunity for official acts, a president could be paralyzed by dozens of overlapping criminal investigations—many driven by political disagreement rather than genuine misconduct. On this point, I understand why the Court found some form of structural protection necessary, even if the present application benefits someone like Trump.

This principle is not new, particularly in civil law. In Nixon v. Fitzgerald (1982), the Court established that presidents are “absolutely immune” from civil liability for actions within the “outer perimeter” of their official duties. And in Clinton v. Jones (1997), the Court made clear that immunity does not extend to conduct predating the presidency. We also have precedents limiting judicial interference with the Executive's discretionary duties, as seen in Mississippi v. Johnson (1867).

The problem, however, is not the existence of this necessary shield, but the broken constitutional mechanism designed to check it.

What worries me is the almost insurmountable barrier the Constitution sets for impeachment and conviction. If impeachment is the only remedy for presidential wrongdoing—and the voting structure of the Senate makes conviction nearly impossible—then the separation of powers becomes dangerously distorted. The failure in accountability has been congressional, not structural doctrine (Trump has committed more impeachable offenses than one can count, yet Congress failed to remove him).

Because impeachment is functionally dead as a check, the separation of powers ultimately relies on a single Supreme Court vote to define the scope of presidential power—specifically, criminal immunity for official acts. The definition of what constitutes “discretionary” or “official” is hardly one that should be left to one vote in a 5-4 decision, making the Court the de facto final arbiter of executive power. This reliance on the judiciary for a political check is why I believe we should seriously consider judicial reforms, such as having an even number of justices or imposing term limits.

2. Removal of Agency Heads

This issue is equally thorny. Congress creates independent agencies, but it does so within the executive branch, and the president must remain ultimately responsible for ensuring that the laws are faithfully executed (the "Take Care Clause"). It would be strange—perhaps even dangerous—to grant unilateral, unreviewable authority to the unelected head of an agency that exercises executive power, as this undercuts the democratic accountability of the President.

I don’t like this outcome when the president is Trump, but I would welcome it under a progressive administration. That inconsistency actually reinforces the institutional point: structural rules must be designed for the long term, not for the president we prefer in a given moment.

Closing Reflection

I’m 78 and grew up during the Warren Court—a time when the Court’s agenda aligned closely with my own values. Now that it does not, the power it has accumulated feels far more ominous. The constitutional architecture remains the same; it is our political moment that has shifted. That is precisely why I hesitate to abandon doctrines like presidential immunity simply because they now protect someone we find reprehensible. The alternative may be far worse.

The Supreme Court’s Existential Crisis: It’s Not Just About Dobbs, It’s About the Yacht

 Chief Justice John Roberts has made it his personal mission to protect what he calls the Supreme Court’s "legitimacy"—the public's faith in the institution. As he wrote, "public trust is essential, not incidental, to our function."

Yet, that essential trust is now collapsing. Polls show public confidence at historic lows. While conventional wisdom points to polarizing decisions like the overturning of Roe v. Wade in Dobbs v. Jackson Women’s Health, I argue that the Court’s real crisis is fueled less by its current political swing and far more by two seismic factors:

1. The appearance of financial impropriety by its justices.

2. The complete capture of the nomination process by hyper-partisanship.

The Supreme Court is once again facing an existential challenge, and this time, the problem starts in the justices' own homes and private jets.

Let's be clear: The Court has never been entirely apolitical. From Chief Justice John Marshall onward, presidents have sought to pack the bench with justices aligned with their own political vision.

History is filled with examples of the executive branch defying or challenging the Court's authority:

• Andrew Jackson famously defied the Court's order in Worcester v. Georgia (1832) regarding the removal of the Cherokee.

• Abraham Lincoln suspended habeas corpus during the Civil War despite Chief Justice Taney's ruling in Ex parte Merryman that only Congress held that power.

• FDR used his "court-packing" threat not only to intimidate justices into changing their minds on New Deal legislation but also to secure his political agenda.

So, the current political disagreement is not new. What is new is the total erosion of the institutional guardrails meant to keep political power from corroding judicial integrity.

The current partisan chasm was accelerating even before the modern ethics scandals. I trace the moment the Senate began treating judicial appointments as "ideological prizes" back to the nomination of Robert Bork in 1987. (1)

Nominated by Ronald Reagan, Bork's long record of originalist writings—questioning established civil rights and civil liberties precedents like the right to privacy cemented in the Griswold birth control decision—set the stage for a new kind of battle.

The Bork fight fundamentally changed the game:

• A Presidential Campaign for a Judicial Seat: Opponents, mobilized by groups like the NAACP and Planned Parenthood, launched unprecedented national campaigns involving TV ads and mass mailings.

• Philosophy Over Qualification: The debate was no longer about personal fitness but constitutional philosophy, turning the process into a proxy war over political ideology.

• The End of Deference: The final, highly partisan 58–42 vote against him—with nearly all Democrats opposing and all Republicans supporting—marked the end of bipartisan deference to a president's judicial choices.

From that moment on, every subsequent contested nomination, from Thomas to Kavanaugh and Barrett, has been organized along strict party lines. The Court was now seen by all sides as central to partisan agendas on abortion, civil rights, and executive power.

While partisanship laid the groundwork, the ultimate, visceral corrosion of public trust stems from stunning appearances of ethical impropriety. This is where the Court's "special status has evaporated."

Nothing has been more damaging than the recent stream of revelations about justices accepting lavish, undisclosed gifts from wealthy political donors:

• Justice Clarence Thomas: A landmark investigation exposed a decades-long, undisclosed relationship with Republican megadonor Harlan Crow. Gifts included:

• A luxury trip to Indonesia, potentially costing over $500,000, featuring nine days on a 162-foot superyacht.

• Regular flights on Crow’s private jet.

• Annual summer vacations at Crow’s exclusive private resort.

• Justice Samuel Alito: He failed to disclose a luxury fishing trip he took with billionaire Paul Singer, whose hedge fund later had business before the Court.

• The Chief Justice’s Wife: John Roberts’ wife, Jane Roberts, shifted her focus to acting as a recruiter and earned millions in commissions from elite law firms that often argued cases before the Court.

As one ethics watchdog noted, "When a justice’s lifestyle is being subsidized by the rich and famous, it absolutely corrodes public trust."

These ethical lapses are only possible because of a shocking systemic failure: The Supreme Court is the only court in the country, federal or state, without a binding, enforceable code of conduct.

The ethical code created by Chief Justice Roberts after immense public pressure is widely considered toothless, as it has no enforcement mechanism. The nine justices are effectively left to police themselves, a standard not tolerated for any other public servant.

Beyond financial impropriety, the justices themselves are increasingly seen as just another political branch—a perception Roberts famously tried to fight by describing the judiciary as merely a referee who "calls only balls and strikes."

• The Alito Flag Incident: Justice Alito flew an upside-down American flag—a symbol adopted by the "Stop the Steal" movement—at his home while the Court was considering cases related to the 2020 election. The display of a deeply partisan symbol by a sitting justice created an unavoidable appearance of bias.

• The Ginni Thomas Conflict: Justice Clarence Thomas's wife, Ginni Thomas, is a paid conservative activist who was directly involved in efforts to overturn the 2020 election. Her text messages urged then-White House Chief of Staff Mark Meadows to "Release the Kraken." Despite federal law explicitly prohibiting justices from hearing cases where their spouses' interests are involved, Justice Thomas was the lone dissenter in a 2022 case that allowed the January 6th committee to obtain White House records—records that included his own wife’s communications.

• The Shadow Docket: The Court is increasingly using a "shadow docket"—a stream of unexplained emergency orders—to make major decisions without full briefing or oral arguments. This process is being used in a "starkly partisan pattern," systematically favoring one side's political interests with no legal reasoning to the public. By acting on preference rather than reasoned judgment, the Court undermines its own authority.

Chief Justice Roberts is worried. His annual reports to Congress show an accelerating concern, shifting from administrative issues to addressing "external pressures and existential risks." He increasingly frames the judiciary as an embattled institution under threat, urgently requiring public confidence and respect.

Yet, in his focus on external threats—intimidation, disinformation, disregard for rulings—he has failed to address the core internal threat: the ethical crisis facing his own court. He wants the public to respect the institution, but respect must be earned.

The Court is the "least dangerous branch," as Alexander Hamilton put it, because it possesses neither the power of the sword (the executive) nor the power of the purse (the legislature). It relies entirely on its legitimacy to compel the public and the other branches to obey its decisions.

As that legitimacy is called into question by lavish gifts, partisan symbols, and unexplained rulings, the Court faces the inevitable question: What will compel obedience when the institution is no longer seen as a dispenser of impartial justice, but as just another political player?

(1)  The nomination of Abe Fortas for Chief Justice in 1968 became a flashpoint for Southern segregationists like Senators Strom Thurmond and James Eastland, who sought to punish the Warren Court for its landmark civil rights rulings. While they framed their opposition around Fortas’s unconventional financial arrangements and his ongoing advisory role to President Lyndon Johnson, their true animus was rooted in judicial philosophy. Eastland and Thurmond leveraged the hearings to vent frustrations over the Brown v. Board of Education era and the "one-man, one-vote" ruling in Baker v. Carr, transforming what was historically a routine confirmation process into a hostile, partisan interrogation. By successfully sinking the nomination through a filibuster, they created the template for the modern, high-stakes judicial confirmation battles we see today.

  Sources:

• Bobelian, Michael. Battle for the Marble Palace: Abe Fortas, Earl Warren, Lyndon Johnson, Richard Nixon, and the Forging of the Modern Supreme Court. Schaffner P, 2019.

• Cameron, Charles M., and Jonathan P. Kastellec. Making the Supreme Court: The Politics of Appointments, 1930-2020. Oxford UP, 2023.

• Dooley, Alicia Bannon, and Douglas Keith. “Clarence Thomas, a Billionaire Benefactor, and the Supreme Court’s Ethics Crisis.” Brennan Center for Justice, www.brennancenter.org/our-work/analysis-opinion/clarence-thomas-billionaire-benefactor-and-supreme-courts-ethics-crisis.

• Elliott, Joshua M., et al. “Friends of the Court: Clarence Thomas and the Billionaire.” ProPublica, resources.newhouse.syr.edu/awards/wp-content/uploads/sites/7/2024/01/01-ProPublica_FriendsoftheCourt_ThomasandtheBillionaire.pdf.

• “Is the Supreme Court Legitimate?” Center for Religion, Culture & Democracy, 1 Dec. 2025, www.youtube.com/watch?v=twknPAX7EGk.

• Gibson, James L., and Michael J. Nelson. “The Legitimacy of the US Supreme Court: Conventional Wisdoms and Recent Challenges Thereto.” Annual Review of Law and Social Science, vol. 10, 2014, pp. 201–219, doi:10.1146/annurev-lawsocsci-110413-030546.

• Petro, Bill. “History of Presidents Opposing the Supreme Court: Separation of Powers.” Bill Petro: History of the World, billpetro.com/history-of-presidents-opposing-supreme-court/.

• Sample, James J. “The Supreme Court and the Limits of Human Impartiality.” Hofstra Law Review, vol. 52, no. 3, 2024, hofstralawreview.org/wp-content/uploads/2024/05/AA.3.Sample.pdf.  SSRN Electronic Journal, 2024, doi:10.2139/ssrn.4939408.

• Schwartz, Mattathias. "Jane Roberts, Who is Married to Chief Justice John Roberts, Made $10.3 Million in Commissions from Elite Law Firms, Whistleblower Documents Show." Business Insider, 28 Apr. 2023, www.businessinsider.com/jane-roberts-chief-justice-wife-10-million-commissions-2023-4.

• Sedler, Robert Allen. “The Legitimacy Debate in Constitutional Adjudication: An Assessment and a Different Perspective.” Ohio State Law Journal, vol. 44, 1983, pp. 93–132. Wayne State University Law School Faculty Research Publications, digitalcommons.wayne.edu/lawfrp/47.

• United States, Senate, Committee on the Judiciary. “Senate Judiciary Committee Releases Revealing Investigative Report on Ethical Crisis at the Supreme Court.” U.S. Senate Committee on the Judiciary, judiciary.senate.gov/press/releases/senate-judiciary-committee-releases-revealing-investigative-report-on-ethical-crisis-at-the-supreme-court.

• Note that all of the Chief Justice's annual reports are available here. 

 

Swarms, Venezuela, and the little guys

Watching Trump move an entire carrier task force off the coast of Venezuela could not help but remind me of numerous instances where indigenous, less-developed nations overcame highly technical more powerful attackers, Vietnam being just one example.  Sometimes putting lots of money and sophistication into “better” systems may not be the right path. 

Recently, I happened to watch a video on how the development of the corvette (1), a small, inexpensive, un-warship-like vessel probably won the Battle of the Atlantic for England because it allowed the British to surround convoys with 6-10 escorts thus forcing u-Boats below the surface. The Admirals looked askance at the idea of these ungainly little boats when they would have much preferred fancy destroyers, true greyhounds, but much more expensive and requiring many more months to build. A case of quantity over quality.

That reminded me of the infamous Millenium2 game held between the Blue (U.S.) and Red (Iran). The purpose was to demonstrate how the U.S. naval task force using well-defined tactics could bring Iran to its knees in short order. The Red team was led by General Van Riper, known and picked perhaps for his iconoclastic approach to problems. The game was refereed by the “white” team who also controlled the rules of the game so when Riper asked if he could shoot down Osprey helicopters, C-130s or use chemical weapons, he was told no he could not.  So Riper decided on a novel approach. He would “preempt” the “preemptors” and attacked  “once U.S. forces were within range. Van Riper’s forces unleashed a barrage of missiles from ground-based launchers, commercial ships, and planes flying low and without radio communications to reduce their radar signature. Simultaneously, swarms of speedboats loaded with explosives launched kamikaze attacks. The carrier battle group’s Aegis radar system — which tracks and attempts to intercept incoming missiles — was quickly overwhelmed. 19 ships were sunk. It was over in five minutes. The scandal had only begun.  The Blue team had no clue what to do next so the white team changed the rules and resurrected the sunken task force. The Red team was so hobbled that the Blue handily went on to meet all of the objectives the Defense Department wanted to prove.  JFCOM and the Office of the Secretary of Defense were determined to validate the principles and concepts that would support the advanced technological military transformation that Rumsfeld and his senior aides had been insisting upon.

That debacle brings up the importance of dissent. As we watch the epitome of oleaginous, obsequious, and  ambitiosus behavior during Trump cabinet meetings, one cannot help but wonder if Trump has any concept of team, only of rivals. Micah Zenko’s Red Team: How to Succeed by Thinking of the Enemy delves deeply into the necessity of dissent to overcome organizational complacency.

Red teaming is a structured process that allows institutions to better understand their own shortcomings, predict the actions of adversaries, and test unstated assumptions through three primary techniques: simulations, vulnerability probes, and alternative analyses Rooted in the historical role of the Catholic Church’s Advocatus Diaboli (Devil’s Advocate)—a designated dissenter tasked with providing point-by-point objections to official claims to ensure rigor—modern red teaming is essential for organizations operating in competitive environments characterized by rapid change and incomplete information. At its core, the practice exists to solve the critical institutional problem that "you cannot grade your own homework."

Cognitive biases hinder objective self-assessment. Individuals are universally susceptible to biases like confirmation bias (favoring findings that support existing beliefs) and relying too heavily on initial impressions, making it inherently difficult for analysts or employees to evaluate their own judgments objectively

Organizational biases arise from the rigid, hierarchical structures prevalent in large institutions, employees often adopting the norms and preferences of their bosses and their institutional culture,  perceiving that offering dissent is either futile or "potentially career damaging". As one expert noted, no one ever got fired for silence. This reality prevents organizations from reliably self-generating dissenting viewpoints that reach senior leaders. A prime historical example of this failure is the military structure that produced the failed Operation Eagle Claw, where planners reviewed and critiqued their own product without external, independent observers, leading to mission failure

Red teams act as "surrogate adversaries" to test physical defenses, computer networks, and internal processes . Examples include white-hat hackers conducting cyber penetration tests on networks or investigators smuggling radioactive material across borders. Another alternative is to commission a separate team to challenge the underlying assumptions of conventional products, often providing a "speculative and/or unorthodox views" that mainline analysis cannot.

All this assumes a “Boss buy-in” in order for the Red Team to have adequate freedom and resources, not to mention a willingness to hear and act on “bad” news. 

The case studies examined reveal the profound impact of red teaming—or the lack thereof—on critical operations. Among other case studies, Zenko analyzed the Millenium2 war game noted above . The exercise was meant to test ambitious military transformation concepts. General Riper successfully simulated an asymmetric saturation attack, sinking 19 U.S. ships in minutes, demonstrating the vulnerability of expensive systems to unconventional massed attack. However, the controllers subsequently directed that the virtual fleet be "refloated," proving that the "end state was scripted" to ensure a predetermined outcome. .

In the intelligence community, high-stakes decisions rely heavily on independent critique. The search for Osama bin Laden utilized three separate red team probability estimates to assess the likelihood of his location, giving decision-makers a necessary "dose of realism" before authorizing the raid

Conversely, the disastrous 1998 bombing of the Al Shifa factory occurred because the critical underlying intelligence was never subjected to independent alternative analysis, resulting in officials having "a high degree of certitude" based on fatally flawed information. (2)

Similarly, in homeland security, the pre-9/11 FAA Red Team repeatedly documented security failures, including the ability to smuggle prohibited items onto aircraft. Despite consistent warnings, FAA officials disregarded their findings, leading to the conclusion that the program was "grossly mismanaged" and created a "substantial and specific danger to public safety"

Back to swarming and the evolution of warfare and why high-tech may lose to low-tech.

The shift in modern warfare away from relying exclusively on expensive, sophisticated platforms toward prioritizing quantity over individual quality represents a profound challenge to traditional military doctrine. This revolution is driven by the proliferation of cheap, expendable One-Way Attack (OWA) drones (otherwise known as kamikaze) or loitering munitions. These systems, designed for single-use, kamikaze-style attacks, have introduced a new strategic logic termed "affordable mass precision," arguing that the sheer volume of attacks can achieve decisive military effects that were previously obtainable only through high-end, costly equipment

Because OWA drones are cheap to build, operate, and expend, deploying them at scale imposes a disproportionate cost on the adversary who must use sophisticated and expensive countermeasures to defend against them. (See the Millineum2 war-game for example.) For instance, reports highlight that a single $500 drone can successfully destroy a $10 million tank, illustrating an astounding cost ratio of 20,000:1. Crucially, this financial dynamic makes defense economically inefficient: defeating a $500 drone with a missile costing millions is effective in the immediate engagement but is not sustainable in a protracted conflict. This represents a huge problem for the United States that has invested enormous sums for aircraft carriers and sophisticated jets that planners may be reluctant to deploy because they are so time-consuming and expensive to replace (see the corvette example as well as Hitler’s fear of losing the Tirpitz and Bismarck.)

This economic shift compels military planners and less developed countries to adopt the strategic concept of "affordable mass precision," utilizing large numbers of cheap, "good enough" drones (or cheap tanks in Stalin’s case)  to overwhelm defenses

Numerical mass, involving hundreds or thousands of drones, effectively compensates for any shortcomings in individual platform sophistication, thereby achieving a decisive aggregate effect. This quantitative strength allows swarms to saturate even advanced air defenses, imposing costs wildly disproportionate to the drones’ price. Consequently, expensive, exquisite platforms previously necessary for high-impact missions are increasingly recognized as vulnerable to destruction early in a conflict. The democratization of power enabled by these low-cost, attributable systems lowers the barrier to entry, allowing smaller militaries or even non-state actors to contest air and maritime spaces once dominated solely by high-end systems.

Modern militaries must abandon the traditional assumption that air-power is synonymous with expensive platforms or sensors, and instead prioritize cost distribution, redundancy, and mass production. The capability to produce thousands of cheap, attributable systems is now considered a prerequisite for maintaining operational continuity and sustaining combat power in high-intensity conflicts. Ultimately, cheap drones and loitering munitions, when used effectively in large numbers, fundamentally disrupt traditional defense economics and enable lesser-value weapons to destroy or disable far higher-value targets. That would place the task force off Venezuela in a vulnerable situation.

Then again, perhaps Trump is even more devious and wants his own Gulf of Tonkin (3) moment as a prelude to massive bombing and regime change.  For someone with no experience in war who doesn’t read and who thinks he knows everything, that’s a dangerous attitude.

(1) The WWII Corvette (most notably the Flower-class) was a small, quickly-built, and inexpensive warship based on a commercial whaler design. Lacking the speed and armament of destroyers, the corvettes used sonar and depth charges to force German U-boats to submerge and keep them pinned down long enough for the convoy to escape. They provided the necessary numbers of escorts to keep the vital supply lines to Britain open, ultimately becoming the "workhorse" that helped defeat the U-boat threat. They were miserable ships to serve in: crews were constantly seasick, cold, rolled even in calm seas, cramped, but incredibly reliable and seaworthy.  They were based on whale ship design, simple but sturdy and reliable averaging 240 days at sea versus 180 for destroyers. The fast destroyer remained tactically superior; strategically, it was irrelevant.  (For a superior novel about corvettes during WWII read Nicholas Monsarrat’s The Cruel Sea based on his own experience.)

(2) https://jacobin.com/2016/10/bill-clinton-al-shifa-sudan-bombing-khartoum

 (3) The "Gulf of Tonkin" refers to a fabricated naval attack that the U.S. government used as a pretext to escalate its involvement in the Vietnam War. The USS Maddox, a U.S. destroyer, was performing an intelligence patrol off the coast of North Vietnam. It was fired upon by three North Vietnamese torpedo boats. The Maddox returned fire and damaged the boats.

Two days later, the U.S. government claimed that the Maddox and another destroyer, the USS Turner Joy, were attacked again at night during a storm. This second attack never happened. Nervous sonar operators mistook the sound of their own ship's propellers and stormy weather for enemy torpedoes. The commander on the scene later messaged Washington expressing doubts, stating the "attack" was likely just freak weather and over-eager sonar men.

Despite the doubts and lack of physical evidence (no wreckage, no bodies, no enemy ships seen), President Lyndon B. Johnson and Defense Secretary Robert McNamara presented the second attack to Congress and the American public as a confirmed, unprovoked act of aggression.

This led to the immediate passage of the Gulf of Tonkin Resolution, which gave the President nearly unlimited power to wage war in Vietnam without an official declaration of war from Congress. The Johnson administration used a non-existent battle to secure a "blank check" for a war that would ultimately kill 58,000 Americans and millions of Vietnamese.

Sources:

 https://www.researchgate.net/publication/383069586_A_one-way_attack_drone_revolution_Affordable_mass_precision_in_modern_conflict

Just a moment... (n.d.). Just a moment... https://warontherocks.com/2015/11/millennium-challenge-the-real-story-of-a-corrupted-military-exercise-and-its-legacy/

 

Robinson, Nathan J, “Bill Clinton’s Act of Terrorism.” Jacobin, 10.12.2016

 

Scharre, P. (2018). Army of none: Autonomous weapons and the future of war. W. W. Norton & Company.

 

US Joint Forces Command, “U.S. Joint Forces Command Millennium Challenge 2002: Experiment Report,” undated. 

 

Yagil Henkin (2014) On Swarming: Success and Failure in Multidirectional Warfare, from Normandy to the Second Lebanon War, Defence S udies, 14:3, 310-332, DOI: 10.1080/ 14702436.2014.901663

 

Zenko, M. (2015). Red team: How to succeed by thinking like the enemy. Basic Books.