Jed Stiglitz on Dorf On Law suggests the imbecilic behavior of Trump and his nominees, when it comes to judicial matters such as the recent DACA brouhaha, may be a symptom of a deeper plot:
Let me float another explanation that is outside of normal politics and fits with a broader pattern in this administration. Suppose you were trying to degrade the judiciary. To undermine values core to the institution, that is, and moreover to publicly demonstrate that the judiciary is spent and subordinate. What might you do?
One strategy might be to advance poor cases. In fact, the poorer the better. If you convince the judiciary to go along with a strong case, that helps you little. But if you can convince the judiciary to submit to a weak case, that is very helpful. Submission to a weak case is helpful in the first instance because it directly undermines the integrity of the institution’s internal logic. The institution must contort itself to accommodate the weak case and find ways to ignore its own history. It is helpful in the second instance because the weaker the case, the more of a public statement the judiciary’s submission is. Submission to absurdity shows all that the administration is dominant and without judicial constraint.
Here, the fact that Nielsen very easily could have fixed the explanation is part of the point. She would not take the smallest steps to accommodate the court or its internal logic. It was helpful, moreover, that the case confronted the adequacy of reason-giving, a value core to the judiciary (and in ordinary times, the administrative state). Submission to these facts would be very useful to breaking the judiciary. This theory also explains the rush to the Supreme Court, where the administration thought it might receive a more readily submissive audience than in the relevant Circuits. The Supreme Court, of course, is also more high profile, all the better for public display. Further, the theory more closely explains the vote by the Supreme Court. It was the institutionalist, Roberts, who voted against the administration despite his conservative ideology. The other four conservative justices were willing to go along with the administration.
A chilling thought, although it does leave the liberal wing of SCOTUS looking good, along with the older judges in the system, such as Judge Emmet Sullivan. In fact, Trump-nominated Judge Rao’s suggestion that Sullivan’s case regarding Michael Flynn is “not the unusual case” is, as I said yesterday, astounding – or absurd.
Site proprietor Michael Dorf writes in the comments:
Thanks to Jed for this terrific analysis, which echoes Hannah Arendt’s account of the role that absurd lies play in totalitarian regimes. Arendt wrote that “totalitarian mass leaders based their propaganda on the correct psychological assumption that . . . one could make people believe the most fantastic statements one day, and trust that if the next day they were given irrefutable proof of their falsehood, they would take refuge in cynicism; instead of deserting the leaders who had lied to them, they would protest that they had known all along that the statement was a lie and would admire the leaders for their superior tactical cleverness.”
I have not read Arendt, but I presume that the “people” have too much pride to admit they’ve been corralled by miscreants and ill-doers, and thus the autocrats just have to play on that pride to continue in their positions. The constant appeals to victimhood, the cultivation of xenophobia, and several other tactics are really just the dogs the shepherd uses to keep the herd together and under control.
This is why I’ve never been a joiner. Group dynamics are pernicious when viewed from the outside.
