The Attack on the “Resistance Police”

There was once a time when these two things could be true:

  1. You could disagree with a policy
  2. You were unwilling to lie about the law to achieve your goal

Good times, but they are gone, as the newly formed law prof anti-Trump blog takes a dive down the rabbit hole to counter those academics who, while disagreeing with policies, refuse to use their scholarly cred to achieve their goal at the expense of academic integrity.

Interestingly, the few academics willing to call out intellectual dishonesty, compared to the many empowered to spew whatever nonsense serves their ends, appear to be making significant headway. Not because they appeal to an audience of Trump fans and supporters, but because those people who refuse to forfeit their integrity for the cause appreciate their honesty. This is apparently driving the intellectually dishonest to abstraction.

Some members of the legal right have taken to complaining loudly about claims that the Trump administration’s policies are illegal. We’ll call this group “the resistance police”—the group of individuals who, despite claiming to oppose many of Trump’s actions as a matter of policy, spend their time either defending the legality of those very policies, or shaming those who do not.

Notably, they make it six words in before resorting to a facile characterization, calling their adversaries the “legal right.” It takes a second sentence before they give them a cool name,* the “Resistance Police,” thus aligning them against the #Resistance, a group dedicated to eradicating Trump at all costs. By doing so, they tacitly align themselves with a group of hysterics for whom facts and intellectual honesty have no place whatsoever. These are the “literally Hitler” folks who will do anything, say anything, believe anything, to be rid of Trump.

If giving a name to one’s adversaries strikes a bell, it’s a tactic long used by prosecutors to tar defendants. In almost every multi-defendant drug case, they manufacture a “gang name” to create the impression of some vicious conspiracy of evil. A damning name from those for whom the end must be achieved at any means, truth be damned.

What’s troubling about the resistance police is not how they choose to spend their time (hey, different strokes). It’s how they choose to frame their critiques of those who have challenged the lawfulness of the Trump administration’s policies. Their critiques often involve less-than-subtle accusations that the challengers (and, increasingly, the judges who hold that the Trump administration’s policies are unlawful) are all engaged in something other than law, and are driven primarily by motivated reasoning, as opposed to legal argument.

The purpose of the first sentence, beyond the effort to create the appearance that they take no issue with being challenged even though that’s the entire purpose of their attack, is to highlight that if the “Resistance Police” truly opposed the policies, why would they put their time and effort into challenging those trying to end those policies? After all, the arguments may range from the lame to the flagrantly dishonest, but they’re all for the good, so why not turn a blind eye to legal distortion and nonsense if it serves a virtuous goal?

But, like Bernie Burk, they get to their deepest hurt, that they are being called out for “motivated reasoning.” This artful term can be phrased differently: intellectual dishonesty, though if called what it is, it sounds far less benign.

The history of academics selling their cred for their cause is hardly new. An early pioneer, Mary Anne Franks, tried to claim that her poorly-conceived Revenge Porn law had no First Amendment implications. She promoted her fatuous arguments wherever possible, making any poor shmuck stupider for having read her. If you challenged her, she responded by calling you a misogynist, and worse. While some academics called bullshit on her bullshit, she mostly got away with it. It was her one contribution to academia: lie for the right cause and you get a free pass on intellectual dishonesty.

And so the substance of the attack on the Resistance Police:

The resistance police have been out in full force. In the beginning, they policed academics and commentators who criticized the Trump administration’s policies, and who argued the policies were unlawful. Some of this kind of resistance policing has continued. On Wednesday, Professor Kate Shaw penned a thoughtful New York Times op-ed that summarized a forthcoming Texas Law Review article about when the President’s words matter in court. Generally, Shaw argues, the President’s words (at least those that depart from official or administrative statements) do not and should not matter. But the President’s words do matter, she explained, when the President’s intent is relevant to the legal analysis, as it is in the challenge to Trump’s travel ban. (One of us has similarly written about how a President’s words can matter in the context of “unlawful command influence” claims in courts-martial.) One professor immediately claimed, the nuance of the op-ed notwithstanding, that Shaw was “argu[ing] for [a] Trump exception to constitutional principle.”

Much as it may hurt someone’s feelings, that Shaw’s op-ed argued for a Trump Exception was obvious. That they didn’t want people to see the obvious is understandable, as it makes them look disingenuous, but that’s what comes of being disingenuous. That Shaw’s argument was vague and lamely weak was similarly obvious. This may have been the best Shaw could muster, but it was one only the truest of believers could accept. And so it’s described as a “thoughtful” op-ed, as adjectives are a substitute for reason these days.

The primary target of this attack is the prolific Josh Blackman, who took three posts at Lawfare to analyze the Fourth Circuit’s travel ban decision. You can agree with Josh or not, in whole or in part. But that a kid lawprof is one of the few willing to buck the academic establishment, and his legal analysis caused the Lawprof Resistance to lose its mind, speaks volumes.

There is a simple reason why intellectual honesty demands that false arguments in support of otherwise good purposes can’t go unmentioned. Integrity. The shame is how blatantly some academics have given theirs away for their cause.

 

*Much as the name “Resistance Police” might implicate all the horrifying and exhausting trauma that infects its creators, it struck Cato’s Ilya Shapiro as a good name for a band. If that’s the game to be played to try to denigrate their adversaries, why not embrace it?

25 thoughts on “The Attack on the “Resistance Police”

  1. el profesor presente

    Talk about an own goal. People using “police” in a metaphorical context are usually mocking the party being policed, not the party doing the policing.*

    Would anyone take style advice from somebody who keeps complaining about the “fashion police”?

    Do “grammar police” and “soup police” sound as bad as their unmentionable alternatives, or do they imply that someone is having problems with their alphabet soup?

    If a candidate mocked their opponent in a debate as the “[candidate’s party] police,” whose poll numbers would probably benefit?

    *”Tone policing” is one obvious exception, but since it’s usage is generally received as “I’m a shameless hypocrite who lacks a logical argument” it helps underscore the folly.

  2. Jay

    Yeah we get it you think the law is a fragile ecosystem of virtue and are disappointed that academics are willing to toss integrity to face off with an administration hellbent on burning Rome and its schools with it. Why not call DeVos and offer your services to her plans to get rid of federal student loans?

    1. SHG Post author

      Your mad skillz at connecting completely unrelated dots of hysteria is impressive. If only you felt as strongly about integrity.

  3. Richard Kopf

    SHG,

    I am glad you still write about intellectual honesty–the real kind that causes the thinker to squirm when contemplating his or her own tentative conclusions. Unfortunately, for many law professors that lodestar is passé.

    If you were only writing about academics I would say give up. That ship has sailed. But, increasingly, we see judges–from both poles of the jurisprudential spectrum–who eschew intellectual rigor and knowingly substitute ever so slick sophistry. Since judges matters, and legal academics not so much, keep it up. Indeed, your post entitled “A ‘Conceptual Ledge’ To The Slippery Slope of TrumpLaw” is a pointed yet respectful reminder to judges (and, in my view, particularly to Chief Judge Gregory) of the overarching importance of intellectual honesty.

    All the best.

    RGK

    1. SHG Post author

      My hope is that we can emerge from this dark age with some shred of decency intact. I don’t expect to live long enough to find out, but at least I can be a laboring oar in the effort to save intellectual honesty for the sake of my grandchildren (if either of my kids gets off their butts, away from their screens and fulfill their obligation to produce grandchildren for me to play with).

      1. Richard Kopf

        SHG,

        My two grandchildren from Australia with their hysterical accents arrive in six days. I have lived most of my life hating children. However, being called “Grampa” by little people has forever changed my point of view.

        G’day

        Rich

        1. SHG Post author

          Two grandchildren (with Aussie accents, no less) more than makes up for your wife’s cute little John Deere tractor.

          1. Richard Kopf

            SHG,

            You wanker, I can’t even fathom the depths of depravity you willing employ to attack my John Deere 300. All the best.

            RGK

            1. the other rob

              Judge Kopf: If I may ask, did you obtain the epithet “wanker” from the Australian branch of your family? While it’s common in the UK and Antipodean countries, I’ve rarely heard it in the US.

        2. KP

          “the real kind that causes the thinker to squirm when contemplating his or her own tentative conclusions”

          Ah- Wait until the small ones ask Granpa those really tricky questions that may need a little evasion “until they’re older..”

  4. Patrick Maupin

    The term “motivated reasoning” is quite a clever strawman. It’s something we all engage in internally; in fact it’s a necessity of living. And it’s a short step from purely internal reasoning to sharing the reasoning with others in an attempt to persuade; as Heinlein noted, “Man is not a rational animal, he is a rationalizing animal.”

    But, as you point out, that motivated reasoning thing that we all do is not, and never was, the accusation. Your own reasoning that lying liars should be called out for their dishonesty (why does it need to be qualified with “intellectual” anyway? All the lying liars I know will lie whenever it’s convenient.) is properly motivated by the fact that civilization cannot function in the absence of truth and honesty, and thus these cretins, who are doing their best to help tear it down, need to be named and shamed.

    1. SHG Post author

      I save the lying liars for people who aren’t easily offended and might possibly stop lying if they realize others can see tell.

      1. Patrick Maupin

        But is there a downside to using lying liars for people who won’t ever change?

        And if not, are there any people who might change if you didn’t offend their delicate sensibilities, or is that portion of the Venn diagram completely empty?

  5. B. McLeod

    As in “A Man For All Seasons,” they would cut down every law in the land to get at the devil.

    1. Nemo

      And in defeating the Devil, they hand her victory. That they don’t see it is kind of the point, innit?

      1. B. McLeod

        It has been a long time, but as I recall, the point was that, once all the laws were gone, there would be no shelter for the pursuers when the devil turned on them.

  6. Allen

    Outside of academia and politics, honesty, intellectual or otherwise counts for something. The interesting aspect of it is that for those engaged in this sort of fraud can’t quite seem to understand why others might have a problem. When non-academic people take a dim view of it they are accused of being un-nuanced or ignorant. No, we get it just fine, we can tell the difference between boot polish and bullshit. The question is can you?

    Grandchildren, dammit they suck the spine right out of you. They play on the lawn and I chuckle.

  7. MonitorsMost

    I will gladly stop calling your work intellectually dishonest the second your work stops being intellectually dishonest. Seems simple enough.

    Why people are deciding to throw their hard fought credibility away for Donald Trump of all people is mind boggling

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