Mice or men?
You’re driving down the highway and the driver ahead meanders back and forth between the left and right lanes. “For god’s sake, pick a lane,” you say aloud.
You may say the same to federal judges mentioned in Mattathias Schwartz’s reflections on their recent comments regarding the fate of the republic. Some are speaking out in Trump-era opinions usually much more reserved. Others see that as risky.
Schwartz writes in The New York Times (gift link):
In many instances, the writerly flourishes and flashy citations appear to be symptoms of a growing sense among district-court judges that President Trump’s second term is an all-hands-on-deck constitutional emergency. That feeling of alarm runs all the way up to the Supreme Court, where Justice Ketanji Brown Jackson wrote that one decision from the conservative majority was “an existential threat to the rule of law.”
Oh, but wait, warn others.
The public could perceive rulings as motivated by political animus, instead of the basic application of law to the facts of a case. District court judges who take an unnecessarily adversarial stance could provoke appellate courts to overturn their rulings. And if strident writing becomes the new normal, some judges expressed worry that a more restrained, technical style could be misinterpreted as a sign that they do not have broader concerns.
Some judges who spoke anonymously worried their colleagues just might be taking Trump’s bait. Pick a lane.
“The risk is being the boy who cried wolf,” said Noah Feldman, a professor at Harvard Law School and the author of a book on Franklin Roosevelt’s Supreme Court nominees. “If you say that the republic is collapsing in every single case, will anyone listen when the republic really is collapsing, and the Supreme Court says so?”
Noah needs to get out more. Maybe to Minneapolis.
Sure, the judicial writing manual advises against “pomposity,” and “advocacy.” But what is a federal judge to do when facing an executive branch that defies court orders, repeatedly lies to judges’ faces, asks the Department of Justice to persecute political enemies, and uses the legal system as a tool for delaying accountability for its overreaches and for lining its friends’ pockets? All with the tacit approval of, if not overt direction from, a president whose “brain is oatmeal.” And a Supreme Court willing to give a man with 34 felony convictions and two impeachments the benefit of the doubt.
Some federal judges have had enough.
“Antiseptic judicial rhetoric cannot do justice to what is happening,” Judge Joseph R. Goodwin of the Southern District of West Virginia wrote last month. The tactics being deployed by Immigration and Customs Enforcement, he wrote, are “an assault on the constitutional order” and “beyond the reach of ordinary legal description.”
We are seeing blatant constitutional violations of civil rights promoted by this White House. “No court has yet been required to state the obvious,” Goodwin wrote. “This court is now required to say it.”
In ordering the release of an Ecuadorian asylum seeker and his 5-year-old son, Judge Fred Biery of the Western District of Texas condemned the Trump administration’s “perfidious lust for unbridled power” was “bereft of human decency.” Furthermore, “the imposition of cruelty in its quest [knows] no bounds and [is] bereft of human decency. And the rule of law be damned.”
MAGA praises Trump for telling it like it is. Suck it up, cupcakes.
Mr. Trump has “forced judges to be in a position that they’ve never been in before,” said Nancy Gertner, a retired federal judge and lecturer at Harvard Law School. “The distance between what he’s trying to do and what is lawful is so great, and the language of these opinions reflects that. So it’s not that there are rogue judges. There is a rogue president.”
But for Edward Whelan, a conservative legal commentator and former Justice Department official, judges who go further than “dispassionately deciding the specific case in front of them” are overstepping their role. “Once you get into other questions — should the judge be sending a signal or warning of the apocalypse — that’s not judging. That’s something different,” he said.
Like pulling the fire alarm instead of whispering amidst smoke and flame?
Mr. Trump escalated his attacks on Wednesday night, calling on Republican lawmakers to pass a crime bill that “cracks down on rogue judges.” He said at a National Republican Congressional Committee event in Washington that these judges “are criminals.”
First Trump came for the Muslims. Then he came for the election process. Then he came for the immigrants … and their civil rights. Then he came for civil servants. Then he came for voting rights. Then he came for political opponents. Then he single-handedly started a war, all along accepting bribes and lining his pockets.
Are we at banana republic yet, or still one banana short?
(h/t KM)