What do you do when you lose everything between Maryland and the California border? You look for friendly judges who hate Trump as much as you do. You get these judges to write opinions that slow down or stop President Trump’s agenda.
It probably draws a cheer from left-wing precincts, but it does not serve the independence of the judiciary. After all, who wants to take the field when the guy calling balls and strikes is a partisan for the other team?
Professor DeGirolami wrote a great post this weekend about judges with a bad case of Trump Derangement Syndrome:
Something ugly is happening to the First Amendment. It is being contorted to enable judges to protest Donald Trump’s presidency.
The perennial impulse of judges to manipulate the law to achieve morally and politically desirable ends has only been exacerbated by the felt necessity to “resist” Trump.
The result: Legal tests concerning the freedoms of speech and religion that in some cases were already highly dubious are being further deformed and twisted.
Welcome to the rise of fake law. Just as fake news spreads ideologically motivated misinformation with a newsy veneer, fake law brings us judicial posturing, virtue signaling, and opinionating masquerading as jurisprudence.
And just as fake news augurs the end of authoritative reporting, fake law portends the diminution of law’s legitimacy and the warping of judges’ self-understanding of their constitutional role.
Those who try to police the relentlessly transformational projects of constitutional progressives had much to dread from the Obama administration, an inveterate ally of the legal left that did what it could to graft the aspirations of progressives onto the Constitution.
But Trump’s presidency may be even worse, because too many judges now feel called to “resist” Trump and all his works – no matter the cost to the law’s authority and to the integrity of the judicial role.
It may go on for a while. In other words, it won’t be long before every law that passes a red state, such as the new sanctuary city rules in Texas, will be frozen by some judge who thinks he knows best.
How much longer will this nonsense go on? I don’t know, but Attorney General Jeff Sessions could do the U.S. Constitution a big favor by taking a few of these opinions to the Supreme Court to re-establish executive authority.
It’s time to remind judges that President Trump is the commander of the chief or that the federal government can withhold funds if states are not living up to the law.
It may be time for Chief Justice John Roberts to remind judges that they are in the wrong branch if they want to make law.
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