As Linda Greenhouse has been trolling the Supreme Court in her effort to de-legitimize it in the Era of Gorsuch, so too have the second-stringers like Dahlia Lithwick. Apparently, she has now seen the light!
[C]onservative and libertarian legal commentators (many of whom were on the challengers’ side opposing Obamacare in the 2010 litigation) are now accusing individual judges — and sometimes entire federal courts — of shirking their institutional roles as neutral magistrates and “joining the resistance” in the various suits against President Trump.
Wait, what? Legal commentators are accusing judges of engaging in TrumpLaw? Who would be so malevolent and evil?
From National Review to The Wall Street Journal, these critics are voicing the idea that if President Trump loses any of his legal battles, it will be because progressive judges are out to get him. The fact that many of these rulings have come from Republican appointees or centrist Democrats and that they are often rooted in sound doctrinal principles is left out.
These critics, in the guise of dispassionate legal analysts, are using the same kinds of language and tactics deployed by the president they claim not to be defending to attack judges and their rulings.
Well, those aren’t exactly legal commentators. And saying something is “often rooted in sound doctrinal principles” doesn’t quite prove much. Who are these poseurs pretending to be dispassionate legal analysts?
For instance, Josh Blackman, a professor at South Texas College of Law, argued in National Review this month that opposition to the president’s policies had been “advanced” by federal judges “who abandoned their traditional role out of a fear that Donald Trump posed an existential threat to the republic.” And Ilya Shapiro, a senior fellow in constitutional studies at the Cato Institute, argued on the Cato at Liberty blog in late May that “what’s going on here isn’t a sober legal analysis” but “a wholesale rejection of Donald Trump.”
But both Josh and Ilya make some pretty strong doctrinal and precedential cases for their positions. It would be fair for Dahlia to disagree with them, but then, she would have to actually, you know, address the substance of their analysis.
To be sure, there are principled disagreements to be had about some of the central and often novel legal questions now arising out of the Trump administration — whether a president’s public statements or tweets should bear on the legality of a formal government policy like the travel ban, whether the Foreign Emoluments Clause applies to the president, whether the president’s Twitter feed is a public forum for First Amendment purposes and so on.
That sounds as if there may be a lot of room to question whether the lower-court holdings are influenced by the fact that Darth Cheeto is a dangerous and clueless clown. But after the constant pounding on the politicization of the Supreme Court, rendered illegitimate by the Senate’s outrageous refusal to give Merrick Garland his hearing, and thereby reducing the judicial branch to a bunch of political scoundrels in black robes, what has changed?
But discrediting federal jurists as having joined “the resistance” isn’t merely an argument lacking in analysis or evidentiary support; it’s also profoundly dangerous, for it suggests that any and all rulings against President Trump are not just doctrinally incorrect but also illegitimate. Much like criticism of all unflattering media reports as “fake news,” and attacks on the loyalty or patriotism of legislators who don’t vote in support of the president’s agenda, denouncing and dismissing all judges with the temerity to rule against Mr. Trump represents a direct attack on the independence and integrity of the entire judicial branch.
Nice to see Dahlia pivot 180 degrees, when it comes to judges who rule the way she wants them to. Maybe it’s the calming influence of her co-author, lawprof Steve Vladeck. Or maybe her beef is with challenging the “independence and integrity of the entire judicial branch,” when it’s only the Supreme Court that’s totally illegitimate.
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I have not seen anyone making criticisms based solely on specific rulings being “against Trump.” Rather, people voice discomfort when the judges say things in or in connection with their rulings that are indicative of the judges’ personal feelz more than a legal analysis of issues in the case. Assuming we manage to avoid a planet-wiping nuclear war, there will be another president someday. The courts should be considering the impacts their rulings are going to have on the presidency as such, not merely whether they meet the short term goal of hanging up Trump’s agenda.
In one of the travel ban arguments, plaintiffs conceded that had the same Executive Order been issued by anyone either than Trump, it would be entirely within the president’s objective authority. But because it was Trump, it was not because his motivation is improper.
In those cases in particular, the courts have opened the door to federal court for a plaintiff who alleges: 1) I am harmed by the president’s action; and 2) the president’s motivation was improper. This also seems to be the formula for the challenges to ending DACA (one president’s pen is mightier than another’s depending on alleged ‘motivation’). If the courts actually intend to apply this as precedent going forward, future presidents will be able to accomplish very little, even if they are elected to two terms of office.
But the point is that courts have circumvented precedent for this president. Whether they hold to it in the future, when there is a different president, remains to be seen, but Josh/Ilya’s args are that lower courts are rationalizing their way around otherwise clear precedent. It’s not that their decisions are necessarily wrong, but that their decisions are informed by man rather than law.