There was once a time when these two things could be true:
- You could disagree with a policy
- 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?