Roger’s Rules

Judge Robart’s Black Humor

The funniest part of Judge James L. Robart’s cursory, six-and-a-bit-page restraining order against Donald Trump’s executive order — which temporarily suspends travel into the United States from seven notorious sponsors of terrorism — comes at the end:

Fundamental to the work of this court is a vigilant recognition that it is but one of three equal branches of our federal government. The work of the court is not to create policy or judge the wisdom of any particular policy promoted by the other two branches.

Ha! What a card!

The Left goes shopping for a likeminded judge, and finds a Seattle District Court judge who is sympathetic to Black Lives Matter and does pro-bono work for refugees. He has the added advantage of being located in the Ninth Circuit, the wackiest, most reliably left-wing precinct of the U.S. appellate system (though that may change soon). Said judge then intervenes to suspend the implementation of an executive order issued by the president of the United States to help safeguard the country.

The Justice Department quickly asked for an emergency stay of Judge Robart’s order, but, as could have been predicted, the left-leaning Ninth Circuit just as quickly denied the request. Additional legal briefing in the ninth circuit is forthcoming, but most observers believe the case is headed for the Supreme Court. What happens then will depend on many things — including the fate of Neil Gorsuch, Donald Trump’s nominee to fill the seat vacated by Antonin Scalia’s death last year. In the meantime, if another Orlando, San Bernardino, or Boston Marathon slaughter takes place, public sentiment will surely, and rightly, support Donald Trump’s suggestion that Judge Robart is to blame.

Let’s pause to note what just happened.

Although he is but one of hundreds upon hundreds of District Court judges, Judge Robart insists that the “declaratory and injunctive relief” outlined in his order be applied immediately and on a “nationwide basis” (my emphasis). Seattle has spoken, Comrades! Judge Robarts finds (where? how?) that his court has jurisdiction over … well, over just about everything: the president and the head of the Department of Homeland Security, for starters, but also “the United States of America (collectively).”

So all across the fruited plain, “Federal Defendants and all their respective officers, agents, servants, employees, attorneys, and persons acting in concert or participation with them are hereby ENJOINED and RESTRAINED” from enforcing the President’s executive order.

This may be the best place to pause and point out that Donald Trump, acting as the president of the United States, was perfectly within his rights to issue an executive order to suspend travel from particular countries.

As Andrew McCarthy pointed out at National Review, the order was completely legal. Not only does the Constitution vest plenary executive power in the president — “the sole organ of the federal government in the field of international relations” —  but laws governing immigration explicitly recognize that the president has authority to forbid specific foreigners from traveling into the United States for national security reasons.

McCarthy cites federal immigration law Section 1182(f):

Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate (emphasis added).

In other words, Donald Trump did exactly what the law allowed.

Following the determination of the Obama administration, he judged that Yemen, Sudan, Libya, and the other four countries were a forcing bed for jihadist activity, and therefore all travel from those countries should be suspended for a few months while his administration attempted to formulate better vetting procedures.

That’s why Judge Robart’s conclusion was so funny: he intervened to bring a lawfully issued executive order to a screeching halt all across the country, then tells the world about his court’s “vigilant recognition” that it is “but one of three equal branches of our federal government.” You’ll recall that some characters in George Orwell’s Animal Farm also talk about things being “equal,” even if it turned out that they meant some were “more equal than others.”

Even funnier was Judge Robart’s declaration that he was not (heaven forfend!) attempting to “create policy” (that would be wrong) or to “judge the wisdom of any particular policy” promulgated by one of the two other “equal” branches.

“But, but, but,” you say, “… isn’t that exactly what Judge Robart’s restraining order was? An effort to “create policy,” the policy that all those “officers, agents, servants, employees, attorneys, and persons acting in concert or participation with them” were henceforth and until further notice forbidden from enforcing the President’s Executive Order intended to help safeguard the country from terrorist attacks?

Indeed, why would Judge Robart possibly take this action if he had not previously formed a negative judgment about a “particular policy”?

It is worth noting, by the way, that although Judge Robart prattles on about about “wisdom,” “vigilant recognition,” “proper legal standards,” etc., those qualities are conspicuously lacking in the text of his order. As Scott Johnson observed at Powerline, Robart’s order was “entirely conclusory,” i.e., all assertion, no argument. The attorneys general of a couple of blue states (Washington and Minnesota) prevailed upon him to cook up the order as if it were a batch of instant oatmeal: just add hubris and serve. Wrote Johnson:

If the order had been submitted to me when I was teaching legal writing at the University of St. Thomas Law School in Minneapolis I would have agonized over whether to award it a D- for satisfying the the formal requirements (barely) or flunk it outright. At American Thinker, Ed Straker finds the order wanting. Ed’s assertions are at least arguable; the judge’s decision makes no arguments.

What we have just witnessed is a breathtaking act of judicial triumphalism. It is not, of course, the first such act. History, especially recent history (since 1958, to be precise) is littered with examples of courts wading into the social life of the country to contravene laws, executive orders, and the will of the people in order to impose their own putatively more enlightened strictures upon us.

The common name for this activity is “judicial supremacy.” I’ll come back to that toxic development in a moment. First, a disclaimer and a declaration of irony.

The disclaimer is this: I am not a lawyer or a legal scholar; I have no doubt that there are niceties and complexities attaching to this episode that I do not fully appreciate. But the law in its coercive manifestations is just as much the concern of untutored citizens as it is of experts. Moreover, the lineaments of its operation are not so esoteric that a layman may not comment effectively upon them, if only to rouse the justified indignation of his fellow sufferers.

The irony attaches to the historical fact that, for many observers, the judiciary was thought to be the branch least likely to overstep its boundaries.

Hamilton, in Federalist 78, famously described the judiciary as the “least dangerous” branch of government. Why? Because it commanded no obvious tools of coercion. The legislative branch commanded the money, the executive branch the military, but what did the judiciary field? Hamilton wrote of it:

It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.

There was not much that Hamilton was naïve about. The threat posed by an untrammeled judiciary was one of those things. The anti-federalist writer “Brutus” (probably Robert Yates) warned that the Constitution did not provide an effective mechanism for reining in judicial arrogance:

There is no power above them, to control any of their decisions. There is no authority that can remove them, and they cannot be controlled by the laws of the legislature. In short, they are independent of the people, of the legislature, and of every power under heaven. Men placed in this situation will generally soon feel themselves independent of heaven itself.

The place allocated to the judiciary by the Founders sought to circumvent the evils that “Brutus” envisioned. And had the judiciary kept within those bounds, all might have proceeded as the Founders intended. But we have had some 250 years of hermeneutical ingenuity expended on twisting the Constitution to serve partisan ends. The co-optation and perversion of the judiciary into a policymaking organ furthering a leftist agenda has been part of that process.

Legal historians usually point to the case of Marbury v. Madison (1803) as the first stop on the train whose terminus was judicial supremacy. The details of the case need not detain us. But along the way, Chief Justice John Marshall argued that Congress had erred when it extended the prerogative of the Supreme Court in the Judiciary Act of 1789. This, later judges argued, established a right of judicial review, i.e., the right of the Court to pass muster on the statutes and orders issued by the other two branches. Jefferson took issue with the decision, noting later:

You seem to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men, and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps. … Their power [is] the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the elective control.

The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves (my emphasis).

As it happens, the explosive seeds planted by Marbury lay dormant until the 1850s. And they did not really burst forth until the left-liberal program of social engineering got underway in the late 1950s and 1960s. The key case, I believe, was Cooper v Aaron (1958), which bore on the issue of desegregation.  Anyone who has seen what prodigies of social engineering have been wrung out of the Fourteenth Amendment, especially the seemingly innocent phrases “due process” and “equal protection,” will tremble as he reads through this decision.

Article VI of the Constitution established that the Constitution and “the Laws of the United States which shall be made in Pursuance thereof … shall be the supreme Law of the Land.” But the Court in Cooper v Aaron went one better, and declared: “The interpretation of the Fourteenth Amendment enunciated by this Court in the Brown case is the supreme law of the land.”

You see why partisans of a so-called “living Constitution” have greeted the instruments of judicial review and judicial supremacy so eagerly. Can’t get the people behind a policy you like? No problem! Just have the courts step in and discover a “right” buried in some harmless phrase of the Constitution. Ditto with things you don’t like. Pretend to discover a precedent that makes it incompatible with your interpretation of some bit of the Constitution.

The distance between saying that the Constitution is the supreme law of the land and saying that an interpretation foisted by the Court onto the Constitution is the supreme law is the distance between a government of checks and balances in which the people are sovereign, and a government in which the judiciary is sovereign.

Shortly before his untimely death, Antonin Scalia pointed out the scandalous reality that the United States was in fact, if not in theory, governed by nine unelected be-robed officials who served for life, all of whom (as the Court is presently populated) went to Harvard or Yale.

This situation is exactly what Jefferson meant by “the despotism of an oligarchy.”

Some thoughtful legal commentators (Alexander Bickel, for example) have worried that the growing habit of judicial supremacy would undermine the trust and ultimately the legitimacy of the judiciary in this country. To the extent that the courts were seen to frustrate rather than support the will of “we, the people,” to that extent their protected status as (supposedly) non-partisan arbiters of the law would be eroded.

Judge James Robart has just taken another large and destructive step down that road. More and more people — and I confess I am one — increasingly conclude that we are living in an age when judicial supremacy is giving way to judicial tyranny.