Here goes:
The judge's authority stems from institutional practice. Some of that practice is written down. Some of what is written down contradicts what is actually practiced, some writings contradict other writings. Practice is also far from perfectly consistent. https://twitter.com/adamgurri/status/1341753198168711170

The relationship between texts and practice is not straightforward; all summaries that run "Constitutional trumps statutory trumps administrative" are partly aspirational and partly accurate but put into practice in ways one might not guess from a description at that level.

To an American it can seem impossible that "unwritten" constitutional systems like the UK or Israel can function without written guardrails, but it doesn't take much reflection on the role of our courts to see that text is no guardrail at all against the evolution of practice.

It only becomes a guardrail in as much as it actually influences the norms of institutional practice. That said, one should not underestimate the ability of legal texts to do just that, under the right conditions. Text played an enormous role in the creation of the federal gov't.

The overall system is intersubjective; the judge has authority because we all know he has authority, which we know because we know that everyone else knows it. The enacting of a legal text, like a statute, may under certain conditions achieve an intersubjective effect.

Many statutes end up effectively in the trash. They are written so poorly, or are intentionally a lot of sound and fury for congressional constituencies to eat up, and achieve nothing. Others might have made a difference, but end up nullified by other actors in the system.

The paper I'm working on traces out the enactment and implementation of the VRA, which had a *massive* effect on the system, probably the single most responsible law for ending Jim Crow. But a lot of different actors in the system had to line up behind it to make it so.

The Civil Rights division of the DOJ had essentially been tangling with southern states for years by that point, across multiple civil rights bills that failed to achieve much. That institutional knowledge went into both the drafting and the rapid enforcement of the VRA.

The text of the VRA said nothing about whether a private plaintive could bring a lawsuit under it, yet the Court decided to hear Allen v State Board of Elections, filed by civil rights activists, and it was the Court's ruling in that case that pushed preclearance to the center.

The career staff in the Civil Rights division of the DOJ put pressure on presidents like Nixon and Reagan, who were less than sympathetic to the VRA. This did much to maintain relative stability in the law, a surprising outcome for one that required renewing every so often.

And of course, personnel changes in the DOJ and on the Court since 2000 have had rather a pronounced effect on that law as well. At any rate, the point is that you can't really tell much about the VRA from the text. When it was signed into law it set off a chain of effects.

And since I'm reading Heath's Machinery of Government, I have to add: the actual executive branch—not the president, but *the executive branch*—receives so much less attention from legal theorists and philosophers than legislatures and courts, yet it is the 800 lb gorilla of law.

This is why (no offense to my friends making philosophical recommendations, all of which are great and I will read) political science is a far better place to start to get the sense of this stuff, IMO

As I say in the OP https://adamgurri.com/2020/12/22/words-words-words/ I've been trying to think about how to approach this stuff with precision and currently I look at it through the lens of the following set of questions (hopefully the final version of them, but we'll see how the paper proceeds):