Hillary Clinton was destined to shatter the glass ceiling and pack the Supreme Court with liberal lions. The Left dreamed of the day when federalism, the right to bear arms, and religious liberty would be exiled from the Constitution, replaced by the progressive jurisprudence they not-so-patiently waited for. Instead, on November 8, 2016, Donald Trump shattered those dreams. The Left awoke from this unfathomable nightmare to a painful hangover: The 45th president would shift the Supreme Court, and the entire federal judiciary, to the right. Rather than advancing our constitutional law closer to Justice Sotomayor’s wing of the Court, the new judges would entrench Justice Scalia’s jurisprudence.
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 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 thinly veiled legal revolt against President Trump playing out in the courts will set lasting and dangerous precedents.
The first conflict came very early. Trump’s January 27 executive order, which restricted entry into the United States, sent shockwaves throughout our legal order. For 90 days, the admission of certain aliens from Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen — whose admission was deemed “detrimental” to American interests — were to be kept out. Almost immediately, lawyers filed suit on behalf of travelers from these nations who were being detained at airports, yet the policy would receive no meaningful defense in court.
Because Democrats had delayed the confirmation of Senator Jeff Sessions as attorney general, the agency was still headed by Sally Yates, a holdover from the Obama administration, when Trump signed the executive order. Finding that the order was not “wise or just,” she instructed the Justice Department to stand down. Rather than resigning — the honorable choice if she believed the policy to be unconstitutional — she simply stood by as federal courts ruled against the government. President Trump had no choice but to fire Yates, who willingly served herself up as the first martyr of the legal resistance.
Then the resistance spread. The Washington Post reported that lawyers within the Justice Department and other federal agencies sought to “push back against the new president’s initiatives” as part of a “resistance from within.” Concerns about the so-called Deep State have been greatly exaggerated, but lawyers in the civil service are all too willing to talk to the press about their efforts to resist the president’s agenda. The public effects of such internal insubordination are hard to calculate because they are largely unseen.
Soon, the Washington State attorney general sought a temporary restraining order to halt the travel ban nationwide — a challenge that was planned well before the order had even been signed. With Yates now out of the picture, administration lawyers mounted a good-faith defense of the policy, though one that was not victorious in court. 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.
By March, with several victories under its belt, the legal resistance had been fortified. National Public Radio anointed David Cole, the legal director of the American Civil Liberties Union, as “the man at the heart of the legal resistance to the Trump agenda.” Harvard Law professor Laurence Tribe was confirmed as the “Citizen Attorney General” of a progressive group calling itself the “Shadow Cabinet.” CNN enthused that the “legal resistance … already has octopus-like tentacles with different groups seeking to unravel or block” President Trump’s agenda.
But over the summer, their winning streak would come to an end. On three separate occasions, the Ninth Circuit Court of Appeals ruled against the Trump administration concerning the travel ban. And on all three occasions, the Supreme Court — without recorded dissent — pushed back on the San Francisco-based court. While the decisions were not unqualified victories for the president, the justices consistently voted to restore the scope of Trump’s executive power to deny entry to aliens he deemed detrimental to American interests.
Justices Thomas, Alito, and Gorsuch would have allowed the travel ban to go into effect in its entirety while the appeals process played out. They explained that the “government has made a strong showing that it is likely to succeed” on its claim that the order was lawful, and that a decision against the government would “interfer[e] with its compelling need to provide for the Nation’s security.” This opinion, according to Jack Goldsmith of Harvard Law School, served to “turn down the temperature, and to interject a better model of behavior into our corroded institutions and discourteous civil discourse.” The lower courts, alas, have not yet taken the hint. As it stands now, the justices are considering whether to dismiss the appeals in light of the president’s September 24, 2017 proclamation, which imposed a quasi-permanent travel ban for aliens from seven nations.
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.