On the Judicial Resistance
Over the past year, I have discussed at some length the self-professed “legal resistance,” which has coordinated legal strategies to resist President Trump in the courts. This front is part of the broader #Resistance movement against President Trump in the political sphere. These actions are completely rational, and unsurprising from the party that (unexpectedly) lost the election.
Published by The Lawfare Institute
in Cooperation With
Over the past year, I have discussed at some length the self-professed “legal resistance,” which has coordinated legal strategies to resist President Trump in the courts. This front is part of the broader #Resistance movement against President Trump in the political sphere. These actions are completely rational, and unsurprising from the party that (unexpectedly) lost the election. What has garnered the most opposition to my work in this context, is the concept of the “judicial resistance.” Dahlia Lithwick and Professor Steve Vladeck, for example, faulted my writings in an October 2017 op-ed titled The Dangerous Myth of the Judicial Resistance. “To the critics, these judges aren’t real judges,” Lithwick and Vladeck wrote, “they’re partisan hacks in robes.” This refrain, which has been repeated by other professors on Twitter, at once confuses my criticism of these judicial decisions and fails to account for my book-length treatment of the substance of their rulings. Without question, I have been extremely critical of these judicial opinions, which I firmly believe are profoundly flawed. Yet, I work very hard to ground my opposition in substantive arguments (many of which are published on Lawfare), and not devolve into political barbs.
I didn’t invent the phrase “judicial resistance” after Jan. 20, 2017. Indeed, I had used it beforehand without even thinking of it. In the Barnett/Blackman constitutional law casebook, we included this introduction to United States v. E.C. Knight (1895): “While most ‘progressive’ legislation originated at the state level, enactment of the Sherman Antitrust Act of 1890 tested the limits of congressional power and marked the beginning of judicial resistance to Progressive Era legislation.” Neither Professor Barnett nor I, who both are sympathetic to the Lochner era cases, hesitated before using the phrase “judicial resistance” to discuss the Supreme Court’s rejection of “Progressive Era legislation.”
More recently, Professor Gillian Metzger explained in the Foreword to the Harvard Law Review that the “growing judicial resistance to administrative government is supported by increasing academic attacks on the constitutional legitimacy of administrative government.” Again, as one of the named anti-administrativists, I had no problem with Metzger’s characterization of courts increasing their skepticism of administrative actions. A quick search of the phrase “judicial resistance” in the Westlaw Journals and Law Review Database yields roughly 1,500 pieces—all published before President Trump’s inauguration.
The objection, then, cannot be to the phrase “judicial resistance” by itself. Rather, the criticism comes from the dangerous and untoward ideas “judicial resistance” conveys. But these sorts of criticisms are in no sense novel. In 2011 two district court judges found that the Affordable Care Act’s individual mandate was unconstitutional. Leading scholars derided these decisions in language far worse than anything I’ve ever done. Professor Laurence Tribe of Harvard Law School wrote, “Only a crude prediction that justices will vote based on politics rather than principle would lead anybody to imagine that Chief Justice John Roberts or Justice Samuel Alito would agree with the judges in Florida and Virginia who have ruled against the health care law.” Tribe described the case as “a political objection in legal garb,” and concluded that “there is every reason to believe that a strong, nonpartisan majority of justices will do their constitutional duty, set aside how they might have voted had they been members of Congress,” and uphold the law, which is “clearly within Congress’s power.”
Professor Akhil Amar of Yale Law School was even harsher. He likened District Court Judge Roger Vinson’s opinion to that of another judge with the name of Roger: Supreme Court Justice Roger Taney, author of the infamous Dred Scott decision, which ruled that slaves were not people protected by the U.S. Constitution. “In 1857, another judge named Roger distorted the Constitution, disregarded precedent, disrespected Congress and proclaimed that the basic platform of one of America’s two major political parties was unconstitutional. . . . History has not been kind to that judge. Roger Vinson, meet Roger Taney.”
In a 2011 Slate column, Dahlia Lithwick questioned whether “the legal arguments over Obama's health care law force us to reconsider the role of the courts.” Her analysis is worth quoting in full, in light of her co-authored fusillades against my work:
We are in a strange holding pattern right now, collectively waiting for the first judge to cross party lines in a health care case. Maybe once that happens, we can all go back to believing in the integrity and infallibility of the judicial branch. Until then, perhaps it's an apt moment to re-examine first principles and think about why we believe in the judicial branch in the first place.
Lithwick, along with Professor Steve Vladeck, claimed in their October 2017 Op-Ed that it is “dangerous new ground, to cast judges who rule against a president as biased or unprincipled frauds.” This is no new ground. Lithwick tilled it well in 2011. They added, “To the critics, these judges aren’t real judges; they’re partisan hacks in robes.” This describes, to a tee, how Lithwick, along with Tribe and Amar, assailed the judges that ruled against the ACA mandate. I raise these points not to charge these writers with hypocrisy—see Point #3—but rather to highlight how non-novel and non-dangerous these sorts of attacks are: they’ve been done before, and the courts survived. When I see that conservative writers today, and liberal writers in the paste, accuse judges of being political, I react much the same way that Captain Renault did when he observed gambling inside Rick’s Cafe. Shocked! Shocked!
My own perspective on the ACA litigation, as relevant here, is somewhat idiosyncratic. In Unprecedented, I offered this account of the case:
With each victory by the challengers in the lower courts, I reassessed my own prediction and became confident that the Supreme Court would have to take the case. Yet I remained conflicted. On the one hand, I was very sympathetic to constitutional arguments advanced by Georgetown law professor Randy Barnett and others that comported with my broader view of constitutional law and our system of government. On the other hand, I was cognizant of the political landscape in which the justices would rule on the issue. I worried about the possible repercussions during the 2012 election if the Court struck down this landmark piece of legislation. Because of the political dynamics involved, this case was unlike any before.
One episode in April 2012, days after oral arguments concluded, deepened my concern. In the span of a few days, all three branches of our government clashed. President Obama called on the Court to uphold the law, Senate Republicans criticized the president for intimidating the Court, and in response, a federal judge demanded that the attorney general state his opinion whether courts retain the power of judicial review. In my mind, this was a preview of the bitterness to come if the Court struck down the ACA. I can only speculate that Chief Justice John Roberts would have viewed the event similarly. At the time, I blogged about this internecine conflict: “I am getting really antsy about this case. Everyone—Congress, the President, and the Courts—are playing with fire. And I have little faith that any of them know what they’re doing.” That lingering doubt remained my sentiment until decision day. When others asked me what I wanted to happen, I was still undecided.
It is because I care so deeply about the integrity of the courts that I feel compelled to fault judges who diminish that integrity. It was for similar reasons that I spoke out forcefully against an ill-considered plan that would have allowed President Trump to stack the judiciary, even though I would likely approve of his nominees. The danger in all cases is staying quiet.
Lithwick and Vladeck write that “what appears to be driving the critics’ broad and novel claim against federal judges who rule against President Trump is nothing more than the assertion that these judges have simply gotten it wrong, often by making things up to push their own political agenda.” At this juncture, I have already written nearly a book-length treatment of how the judiciary has responded to the Trump Administration’s initiatives. Many of these judges have not “simply gotten it wrong.” They are treating the president in ways no court has ever done so before. Yet, I am very careful not to ascribe the judgments to politics in this fashion. (I can’t speak for others.) I avoid the sort of rhetoric that critics accuse me of—indeed, rhetoric that these critics are themselves guilty of. I do not call judges “politicians.” I do not refer to judges as “hacks.” Nor do I write that judges are acting in bad faith. In my oft-cited October 2017 piece from National Review, I freely admit that the rulings were “well intentioned,” but maintain they were “profoundly flawed.”
I’ve combed through all of my writings, and I’ve found one that uses the phrase “judicial resistance”: a May 27, 2017 piece on the 4th Circuit’s decision in IRAP v. Trump. Generally, my discussion of the “resistance” refers to the legal resistance, and not the courts. I was able to locate only a handful of uses of the phrase “resist” or “resistance” in the context of judges: a March 2017 Politico essay on travel ban 1.0; a April 2017 post on a sanctuary city ruling; another April 2017 post on the sanctuary city ruling; a May 2017 piece for Lawfare on IRAP v. Trump; a May 2017 editorial in the New York Daily News (that largely mirrors the Lawfare piece). I tried to make my search as thorough as possible, and welcome any corrections. (Indeed, my only tweet of the phrase is in response to Gillian Metzger’s HLR Foreword; nothing relevant with “#resistance.”)
The clearest articulation of my views on the judicial resistance comes in an October 2017 National Review essay that doesn’t even use the phrase. It develops three points that I’ve developed over-and-over again.
First, I have written at voluminous length that these judges have abandoned the traditional deference afforded to the President based on Trump’s conduct. That is, the presumption of regularity has been abandoned:
Refusing to accept the outcome of the election, progressive legal groups rallied around a hashtag that soon became a movement: #Resist. The New York Times reported that advocacy organizations “put aside institutional rivalries” to make “legal resistance one of the defining attributes of the Trump era.” There is nothing novel about sore-loser litigiousness. Republicans resorted to this strategy over the last eight years. What is remarkable, however, is the breadth and speed of the successes of the anti-Trump lawyers in impeding a presidency. Their movement was advanced by Obama-administration holdovers within the executive branch, and even by federal judges, who abandoned their traditional role out of a fear that Donald Trump posed an existential threat to the republic.
The consequence of this jurisprudence is that in effect, President Trump is disabled from exercising his own constitutional authority because of the circumstances in which he became president. If taken to its logical extreme, the president is now disabled from taking any actions that bear on Muslims, Hispanics, Africans, the LGBT community and countless other demographics he has displayed animus towards. That cannot be the rule of law:
The self-professed resistance must be understood for what it is: a thinly veiled legal revolt. Our Constitution has built-in safety valves to remove an unfit president, whether through impeachment or through a declaration of incapacity. But the exercise of those powers was not assigned to the judiciary. Judges can call balls and strikes; they can’t throw the president out of the game. Fortunately, the Supreme Court has remained a voice of reason within the federal judiciary — a role that it must maintain even as President Trump continues to disrupt legal norms. This administration will come to an end sooner or later. But the precedents set during this period will linger far, far longer.
The phrase “revolt” is not my own, but is based on The Revolt of the Judges: What Happens When the Judiciary Doesn’t Trust the President’s Oath by Benjamin Wittes and Quinta Jurecic. As usual, I am indebted to Ben and Quinta for helping to shape my thinking. They recognized fairly early on how judges were in fact treating the president as the president:
And it’s a discussion that connects directly back to a piece we wrote recently on what happens when people—including judges—don’t take the President’s oath of office seriously. To put the matter bluntly: why are so many judges being so aggressive here? The legal disputes are both interesting and important. But this meta-legal question strikes us, at least, as far more important and far-reaching. And we think the answer lies in judicial suspicion of Trump’s oath. The question goes to the manner in which we can expect the judiciary to interact with President Trump on this and other issues throughout his presidency. It goes, not to put too fine a point on it, to the question of whether the judiciary means to actually treat Trump as a real president or, conversely, as some kind of accident—a person who somehow ended up in the office but is not quite the President of the United States in the sense that we would previously have recognized.
Second, courts have been motivated to reach out to resolve difficult constitutional questions when countless prudential barriers (standing, justiciability, constitutional avoidance, etc.), which would usually be adhered to, are ignored. In particular, the courts have shown no hesitation in second-guessing the government’s national security rationales, and have even demanded confidential White House documents to assuage their concerns. I wrote about once such account in National Review:
After only an hour of oral argument, U.S. district judge James L. Robart in Seattle ruled that the federal government must immediately cease enforcing the executive order. Robart’s seven-page order offered only the most threadbare analysis, giving no indication whether he thought the policy violated the due-process clause, the equal-protection clause, the establishment clause, or the free-exercise clause. Solely on the basis of this hasty and incomplete opinion, immigration officials around the country and consular officials around the globe were now enjoined from implementing the order. Less than a week later, a panel of the Ninth Circuit Court of Appeals affirmed the district court’s order — even though temporary restraining orders are not subject to appeal. The court nonetheless reached out to resolve difficult constitutional questions in this preliminary phase of the litigation. This judicial blitz was a dry run of the legal resistance’s game plan. It would be repeated again and again with respect to the second iteration of the travel ban, sanctuary-city policies, and efforts to unwind the Obama administration’s regulatory agenda. First, President Trump takes an executive action. Second, litigants file suit in multiple friendly forums. Third, the court disregards prudential barriers that restrict suits against the executive — a role exactly opposite to the one that the judiciary usually plays. Fourth, looking beyond the four corners of the policy, the court throws out the policy by psychoanalyzing the commander-in-chief based on his tweets, cable-news interviews, and even campaign statements. Finally, without affording the president the traditional deference his office is due, the court issues a nationwide injunction, stretching far beyond the judges’ jurisdiction.
Third, the courts have repeatedly questioned the president’s motivations as acting in bad faith, and doubted government lawyers who have offered legitimate reasons in court:
The legal resistance often repeats the refrain that our polity must resist “normalizing” Trump as president. Courts, unfortunately, have followed the lead. When judges treat this president as anything other than normal — such as when they engage in law-office psychiatry — it sends a signal to the public that the chief executive is not as legitimate as his predecessors. Trump was elected through the same constitutional process by which judges received their lifetime commissions. He should be treated as such. It is true that Trump consistently disrupts all political norms. The courts should not respond in kind by disrupting judicial norms. In Federalist No. 78, Alexander Hamilton wrote that judges can exercise “neither FORCE nor WILL but merely judgment.” Judge William H. Pryor Jr. of the Eleventh Circuit Court of Appeals observed that “Hamilton’s point was that we must depend on the persuasiveness of our written opinions to command the respect of our fellow citizens.” As a result, he wrote, judges have “the foremost responsibility of safeguarding [their own] independence.” The nationwide injunctions against President Trump are grounded far more in “will” than in “judgment.” They reflect a sincere concern that the 45th president poses an unprecedented risk and that his acts warrant far more scrutiny than did those of his predecessors. This approach, though well intentioned, is profoundly flawed. In a recent speech, Justice Gorsuch offered some important words of wisdom for the rest of the judiciary: “Judges should wear robes,” he explained, “not capes.” Only the political process, and not what was designed to be the least dangerous branch, can save us from the consequences of our own decisions.
This is precisely what I mean by the judicial resistance to the Trump administration. I don’t think the actions are partisan. Nor do I think the judges are acting in bad faith. The judges are writing legal opinions. There are citations and precedents and modalities of arguments. It is law. My objection, however, is that manner in which the courts have treated the president’s role in the separation of powers. What is more dangerous? Writing about these opinions, or the opinions themselves? My writings only have power to the extent they are read. (And ironically enough, I am grateful to my critics for drawing so much attention to my work in high-profile publications; anything that increases readership is appreciated.) Judicial opinions, in contrast, have the force of law.
Again, I write this because I care deeply about the courts, and worry about the lingering damage rulings from these courts will inflict on the judiciary. As the travel ban case finally winds up to the Supreme Court, I hope that this movement will settle down.
