Tuesday, August 24, 2021

The Roberts Court as Trump's Marshall Court

Earlier today, the Supreme Court declined to stay a Texas district court ruling which compelled the Biden administration to preserve a Trump-era policy requiring that immigrants stay in Mexico while awaiting their immigration court dates. The lower court decision, by one of the most extreme right-wing judges in the country not named Reed O'Connor, is a cacophony of results-oriented judicial activism along virtually every dimension -- from standing to the universal injunction to of course the merits. It should never have been handed down and, given the Supreme Court's aggressive use of the "shadow docket" to stay lower court rulings enjoining Trump-era immigration policies left and right (well, mostly right), it should have been stayed by the Supreme Court before it ever went into effect.

Of course, that's not what happened, and the turnabout from the last four years is stark and obvious (Steve Vladeck is right -- this passage has held up). Insisting that the federal government is legally obliged to prohibit migrants from remaining in the U.S. while the court cases is pending is akin, as Matthew Segal put it, to "Korematsu, except the Executive Branch tries to end internment and the Judicial Branch says no you have to do it" (I've said it before and I'll say it again: I really want a lower court to cite Korematsu v. United States as "aff'd sub nom. Trump v. Hawaii"). It is abundantly obvious that the recent aggressive use of the shadow docket has nothing to do with any legal standards (particularly not the one's purportedly governing emergency relief), and everything to do with derailing liberal decisions (whether those decisions are from lower court judges or from democratically-elected officials). As much as right-wing apologists bemoaned "TrumpLaw" -- the judiciary allegedly holding up Trump-era policies to particularly and unreasonably tight scrutiny -- this was always the real TrumpLaw: the Court swinging into action to protect Trump's most grotesque excesses in a way they'd never contemplate doing even for utterly normal Democratic laws under attack by out-of-control conservative activists.

Yet, even though I saw it coming, this particular instance of the Court nakedly swerving course in service of Trumpist ends hit me very hard. Obviously, that's in part because of the impact on those victimized -- the Court serving as a thuggish enforcer of Trumpist "the cruelty is the point" policies. But I'm finding it professionally depressing as well, and I'm curious if any other law professors are feeling the same way.

One of the more widely-taught lessons of the early Supreme Court is how Chief Justice John Marshall, a staunch Federalist, wielded massive influence over American government decades past when the Federalist political party ceased to be a significant political force. Even though they had been soundly defeated at the ballot box, Federalist ideology continued through Marshall to play a major role in determining the contours of how the American republic develop in the early 19th century.

There is a very good chance that the Roberts Court will be the new, Trumpist Marshall Court. Even as Trump is defeated, his policies and his "the cruelty is the point" politics will live on through his allies on the Supreme Court (not to mention those sprinkled across the lower courts), gnarling the development of American politics in a crabbed, reactionary direction in defiance of the manifest will of majorities of the American people. 

And -- unlike the Marshall Court -- these decisions have virtually nothing to do with law, and so they cannot be defeated by good legal training. Hence my professional depression. I fear the skills I teach will have no bearing on how the law develops, because the current trajectory of the law's development has nothing to do with law and everything to do with expanding and enhancing Trumpism's toxic legacy even after the people successfully removed him from office.

The Rhetoric of Good and Bad Speech

Imagine you're a judge, deciding a First Amendment case involving speech that you know many (though not all) people find offensive or even hateful. You conclude, however, that the challenged restriction on the speech is unconstitutional, and now you're writing your opinion. In terms of how you frame the speech in question, you have to main choices:

(1) You can emphasize the "good" of the speech -- why it may be valuable, or challenging, or part of an important American tradition; or

(2) You can emphasize the "bad" of the speech -- how it is legitimately offensive, or injurious, or hateful.

Which is the more effective rhetorical move in persuading an audience which, for the most part, views the speech as some form of horrible?

The former seems like the obvious play: by explaining why this speech serves a valuable function in society and by locating it in a grand social tradition, one validates the decision to give it constitutional protection. We appeal to the audience's better angels, and basically tell them that while they don't have to like the speech, it's not unadulterated awfulness.

But the latter has something to say for it too: by emphasizing the negative aspects of the speech, one shores up the notion that it truly is being protected because that's the position obligated by the law. A casual reader of the first type of opinion might suspect that the speech is being protected because the judge is sympathetic to it (look how she waxes lyrical about its virtues!). The reader of the second opinion, by contrast, can be pretty sure that the judge has no extrinsic sympathy for the speech, which then suggests that the ruling really must be compelled by the law (otherwise why would the judge do it?). This, of course, is the hypothesis I explore in my Sadomasochistic Judging article.