On Slate Dahlia Lithwick and Steve Vladeck express their dismay at certain supporters of President Trump’s agenda:
For months, a vocal but small cohort of conservative and libertarian legal scholars have been trying to convince anyone who will listen that the federal courts have “joined the resistance”—that subversive lower-court judges have abandoned their oaths of integrity and impartiality to rule against President Trump on anything and everything. These commentators have used inflammatory and incautious language to tar entire federal circuits and besmirch virtually every judge who has sided against any Trump administration action. Over the weekend, the editorial page of the Wall Street Journal joined that chorus. In a breathless and tendentious editorial, the Journal portrayed the Supreme Court’s decision last Friday to hear the latest challenge to the travel ban as reflecting a desire on the part of at least some justices to “rebuke the judiciary for stretching the law to join the political resistance to Mr. Trump.” As the Journal put it, “The Justices have a chance to rule on the legality of Mr. Trump’s ban but also whether judges can ignore the law merely because they loathe Mr. Trump and all his works.”
The claim that the high court took up the case not to settle a novel legal question on the merits but to spank the feckless judges of the resistance is fatuous and shallow. It’s also profoundly dangerous to the norms and values of judicial integrity and stability.
And these adversarial legal scholars don’t appear to be able to think ahead. If they succeed in the politicization of the courts – no doubt they’d argue that’s already occurred, but given the fact that judges appointed by Presidents from both parties have weighed in against President Trump, that argument hangs in shreds – then the future of the Republic would look far less stable than it would otherwise.
The judiciary is not a political battleground. The independence of the judiciary is such a necessary part of our governmental system that it is legendary. If we compromise it, either with great vaingloriousness such as these chappies, or more subtly through the subjection of judicial seats to the winds of the electoral system, then we risk the future stability of a Republic that prospers when the judiciary is stable & independent – and suffers greatly when the political winds blow through the judicial galleries. We still rue Dred Scott, do we not?
So SCOTUS is looking at Trump’s Travel Ban 3.0. Does the very future of this argument rest on it? Will this band of brave legal scholars triumph, or lie tattered in defeat, depending on how these elderly and, sometimes, wise jurists decide this one case? I personally doubt it. If the travel ban is permitted, it’s merely SCOTUS correcting the lower courts, which happens with some frequency, for the law is sometimes hard to understand, as it flows from our legislatures.
And if the travel ban is once again rejected, will these legal scholars throw over their crusade and return to more honorable pursuits? No, for those who affirm Trump despite all affronts seem to know no shame.
So don’t go looking for a climactic throw-down here. Regardless of the result, the legal railing against oft-settled law will just go on and on. Some run along on momentum, and others are not able to visualize themselves being in the wrong.
