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Resisting the Myth of the Judicial Resistance

There is no evidence judges have abandoned their oaths of integrity and impartiality to rule against Trump.

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.

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Like the earlier attacks on individual jurists that we documented and debunked in October, the Journal’s new editorial relies on a series of unsubstantiated characterizations of the combined work product of the federal courts. One would have no idea from the Journal’s editorial, for instance, that the reason we’re now on the third iteration of the president’s controversial immigration policy is because multiple prior judicial rulings invalidated the first two versions of the ban. These earlier rulings, by the same lower-court judges whom the Journal’s editorial demonized en masse, were decisions the Trump administration consciously and scrupulously prevented the Supreme Court from reviewing—perhaps because they were more concerned about the legality of these earlier measures than the Journal’s editors seem to be. Put bluntly, the fact that the third version of the travel ban is a more refined and thus more legally defensible version of the first one is a credit to the very courts the Journal insults and undermines. Judges highlighted constitutional and statutory infirmities, and the president’s lawyers took them into account. That is an example of the system working, not the tantrum-throwing Trump resistance undermining the rule of law.

Similarly, readers of the Journal’s editorial would have no idea that those prior rulings were issued by judges appointed by both Democratic and Republican presidents or that this kind of “nationwide injunction” against the federal government came into vogue during President Obama’s tenure. Nor would readers know that, back then, no one thought to declare that those judges were members of the “political resistance to Mr. Obama.” As we wrote back in October:

[D]iscrediting 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.

The Journal’s editorial is guilty of this exact sin: impugning the integrity of lower-court judges who dare to rule against President Trump, asserting (without offering any supporting analysis) that all such rulings are “lawless,” and implying that, if the Supreme Court justices themselves ultimately side with the challengers to the travel ban, it will prove that they, too, have joined the resistance. Such careless rhetoric was dangerous enough when it came from a handful of legal commentators. But for the editorial page of a national newspaper—one that’s historically been protective of the rule of law—to adopt it without a word of careful exposition is far more alarming. The piece contains no parsing of the underlying rulings themselves, aside from a cartoonish dismissal of a complicated recent DACA decision. There is no evidence that any of the dozens of judges to rule in any of these cases (whether for or against President Trump) did so for illegitimate, nonjudicial reasons. There is also no submission that the jurists called out for bad behavior did anything beyond their scope of responsibilities, with the exception of the claim that courts now “refer to Mr. Trump’s campaign statements rather than the language of the regulation.” (It’s in fact an open question whether campaign statements should be considered when ascertaining the intent behind a new president’s policies.) In the Journal’s telling, all judicial rulings are no longer right or wrong. In the age of Trump, they’re either vindications of the president or “lawless.” The Journal commits the very sin it attempts to condemn. There is no law. There is only fealty to your team.

To be sure, the Supreme Court may end up siding with the Trump administration when it finally hands down a decision on travel ban 3.0 this summer. We’re not as confident as the Journal appears to be that the case is simple enough for a toddler to decide, but it’s hardly a no-brainer in favor of the challengers either. If and when that decision comes, it won’t prove the Journal’s thesis that every one of the lower-court judges who struck down the ban at earlier stages is an unprincipled boogeyman. It will merely prove that the separation of powers worked exactly the way it was supposed to, with judges at every layer of the independent judiciary doing their level best to resolve novel statutory and constitutional questions and respectfully disagreeing with each other along the way. The Journal piece concludes with the assurance that “courts need to oppose genuine acts of executive excess.” But if attacks like this one are successful, they could lead us to a future in which, when such acts surface, there will be no independent courts left to oppose them.

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