Within the guild, disagreeing with judicial decisions is a staple of our existence. We dispute them in motions, briefs, memoranda and, occasionally, on a blawg. Rarely, however, is a judge attacked for being disingenuous in the motivations leading to the decision. Sure, there is pro-police bias. Sure, there is anti-minority bias, explicit or implicit. But rarely the rank politicization of the judiciary.

Until now. Mark DeGirolami has written an op-ed for the Weekly Standard claiming that the blight of “fake news” has now reached the bench, coining a new usage: Fake Law.

Something ugly is happening to the First Amendment. It is being contorted to enable judges to protest Donald Trump’s presidency. The perennial impulse of judges to manipulate the law to achieve morally and politically desirable ends has only been exacerbated by the felt necessity to “resist” Trump. The result: Legal tests concerning the freedoms of speech and religion that in some cases were already highly dubious are being further deformed and twisted.

Welcome to the rise of fake law.

DeGirolami extends the fake news phenomenon from the spin fed us by self-righteous journalists to make sure that our news sources lead inexorably to the “right” conclusions to the motivations of judges.

Just as fake news spreads ideologically motivated misinformation with a newsy veneer, fake law brings us judicial posturing, virtue signaling, and opinionating masquerading as jurisprudence. And just as fake news augurs the end of authoritative reporting, fake law portends the diminution of law’s legitimacy and the warping of judges’ self-understanding of their constitutional role.

He goes on, as have other academics, to explain why he disagrees with decisions rendered as to Trump’s executive orders. That there are serious questions raised by these decisions is neither new nor seriously controversial, unless you’re Larry Tribe. But that they’re attributed not to legitimate doctrinal disputes, brought about by the fact that the actions of the new administration amount to, how should I say this, a particularly inept and peculiar use of executive fiat but politicized judicial values, is unfair and baseless.

The situation in law is unusual. Judges are certainly under national pressure and scrutiny that rarely happens. The judiciary on the whole has been impugned by all sides for being purely political hacks, toadies to their political patrons. After the Gorsuch confirmation hearings, painting a widely-respected conservative judge as some alt-right extremist, the rest of the judiciary is shaking its head at the national insanity that’s reached its robes. If Gorsuch can be turned into a monster, so can they. No one is safe.

But DeGirolami doesn’t stop at the line of defending the judiciary from progressive vilification. Indeed, he goes straight to the other side, attacking the judiciary as tools of the Resistance.

Those who try to police the relentlessly transformational projects of constitutional progressives had much to dread from the Obama administration, an inveterate ally of the legal left that did what it could to graft the aspirations of progressives onto the Constitution. But Trump’s presidency may be even worse, because too many judges now feel called to “resist” Trump and all his works—no matter the cost to the law’s authority and to the integrity of the judicial role.

It’s not just that a judge is wrong on the law. It’s not just that a judge agrees with a more progressive interpretation of the Equal Protection clause. It’s that they now have joined hands with progressives as part of the cause to resist this president, and have forsaken law and integrity to reach their cause’s goals. As if to prove Newton’s Third Law, DeGirolami takes the stupid one better.

To prove his point, that judges have gone over to the dark side, he raises the progressives’ disdain for free speech.

In one recent deformation, Trump was sued for incitement to riot and assault and battery when, at a campaign rally before he became president, he said “Get ’em out of here” in response to protesters in the audience. Several of these protesters were subsequently pushed and struck by others in the crowd. A Kentucky federal district judge ruled that the case against Trump could proceed because “Get ’em out of here” could reasonably be interpreted as an exhortation to attack the protesters.

The most astonishing part is the court’s conclusion that the statement is not protected by the speech clause of the First Amendment because it is plausible to think Trump was inciting a riot. Though the court cites the highly speech-protective test from Brandenburg v. Ohio, in which the Supreme Court held that the freedom of speech does not permit the government “to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action,” it mangles it. What part of “Get ’em out of here” could plausibly be interpreted as advocating illegal activity, rather than a call for the assistance of security officers? Where is the explicit advocacy of illegality?

This is crap. The judge denied a Rule 12(b)(6) motion to dismiss, meaning that if the allegations of the plaintiffs are accepted as true, could they conceivably constitute a plausible claim? If not, then the case gets tossed. If so, then the case goes on. Nothing more.

Rather than dispute the conclusion with reason, DeGirolami toys with lay readers by reversing the argument: “What part of ‘Get ’em out of here’ could plausibly be interpreted as advocating illegal activity”? All parts, Mark. You’re welcome. Or more substantively, it’s a call to action in an extremely volatile atmosphere in which violence has previously occurred. Does that answer the question? Hardly, but it raises the question sufficiently to delve further.

That “twitter lawyers” spew all manner of legal nonsense is bad. That “legit” journalists use their soapbox to advocate for their team is far worse. That “scholars” have sold their cred for the cause has morphed from disgrace to tradition. But that the judiciary may have decided something with which one disagrees doesn’t give rise to an attack on its integrity.

Sure, Trump has done so, from his nonsensical “Mexican” smack at Judge Curiel to his “so-called judge” swipe at Judge Robart. But no one expected better of Trump, whose lack of knowledge and grasp of law, governance and Constitution are among his charms. But Mark DeGirolami is a law professor, an academic. He’s got no excuse.

Judges are remarkably good about accepting the proposition that others will disagree with their rulings. District judges are well aware that Courts of Appeal may reverse them, and that goes with the territory. They know that someone, somewhere, will question, often harshly, their decision in a controversial case. They’re big boys and girls. They get it. They can take it. But the challenge is to the ruling, maybe even their intelligence, but not their integrity.

There is no such thing as “fake law” as DeGirolami contends, and this slur should die a cruel, painful and immediate death.