"But in the moment, he and every other judge must use every decision to expose that plot for what it is, an effort to make Americans (judges included) more fearful and less free."
I think Mr. Sarat's point is particularly important in the context of the lack of Democratic leaders willing or able to articulate this message. With the exception of a handful of Democratic Governors, the Democrat party has been woeful in articulating to the American people the "plot".
Unfortunately, the very earliest anything can be done about this lawless regime, this ball-lees maga congress and the catholic inquisition McConnell/Roberts court will be January 2027. I hope we will be able to last that long.
I think the judicial branch has been working diligently. The legislative branch is still on a months long sleepaway vacation. It's difficult to marshal forces when this is the situation. What does hurt the hardworking judiciary is the behavior of the Supreme Court. I think it is time to make this NOT the court of last resort. It must not be allowed, time and again, to override lower court rulings. Today was difficult to stomach when I heard the WH is being allowed to literally ICE LA. When people are hunted down on any other basis than law breaking, it is a dreadful road to hell. On the other hand, it was heartening to hear that E. Jean Carroll damages ruling against trump stands.
The E. Jean Carroll case has yet to be sent to the supine court to have the decision of the Federal Court of Appeals overtuned. We'll just have to wait and see how this finishes up.
If the president isn’t utilizing the law the way it is intended then someone must set him or her straight. Legal advisors and or judges at various levels of the court system must not allow lawlessness from the president. Our Supreme Court is just about allowing anything with this regime. They too must be kept in check even if it takes Congress handing them a rule book to play by. If they don’t like the rules then the justices can be shown the door. The president must abide by the law otherwise they too can face impeachment. We need a congress and a judiciary that enforces the laws.
The courts can issue judgements, but they cannot enforce them. Trump and his administration is willfully ignoring the court decisions, and will continue to do so. Congress is the only tool we have to make Trump adhere to the law and they are allowing him to lay waste our democracy. The Republicans who have the majority are fine with what Trump is doing and the Democrats lack the power to change this and are not using their voices to challenge in an effective way, the havoc Trump is creating. We have a few courageous governors who are using their voice and are actively challenging Trump and getting their message across. Newsom, Pritzker, and a few others are the ones who are becoming the new face of the Democratic Party. We need fighters and they are fitting the bill. Those who are not willing to do this, especially those in Congress, need to be voted out. If you are afraid to challenge the current administration, then you are allowing your constituents to bear the damage that ensues.
A nice piece by a top scholar but missing a piece - namely the role the Supreme Court is playing in what’s unfolding. It is not just that it is enabling many of Trump’s actions under a so-called unitary executive theory, but that it is doing this by disregarding not just precedent but core values that we expect our courts to honor. For example, in determining whether to stay an injunction appellate courts typically look to the harms that will occur if the injunction is or is not stayed. In a number of stays issued by this Court this balancing has been turned on its head. The United States, for example, will not be much worse off if an immigrant is not immediately deported to a country that might torture him and it turns out that the deportation was legal, but the deportee will be far worse off if he is deported and it turns out that the deportation order was invalid. The only justification for this is that the injunction was so clearly invalid that the person acquiring it has no case. But this can hardly be true when two lower courts thought the injunction should issue. So what it means is that without full briefing and argument and without any justification in a written opinion, 5 or 6 justices have already decided the case.
Similarly agreeing that there was a law violation but requiring that the wronged party spend what could be years litigating in a different court to be made whole, as Justice Barrett did in a recent idiosyncratic concurrence, flirs on the face of what justice requires. Without a complicit Supreme Court much that Professor Sarat deplores would not be happening. Of course, without a complicit Supreme Court Court Trump might have been in jail in 2024 rather than running for president.
Your voice along with Justice Jackson and other undaunted heroes called out here in the Contrarian responds to the moment. When you write, "We need more" we hear you, thank you and stand with you.
"Going forward, judges must not only hold the administration to account under the Constitution, but they also must address the radical constitutional refashioning that is going on"
It would appear that the lower courts are doing far better at this than the justices of the supine court (all lower case on purpose). Time and again, either Roberts puts a temporary halt on a violation that Trump is persuing, or the whole court overrules the lower court desision with some arcane or archaic reach never intended by the Constitution. The Roberts court is deplorable.
This part of what the administration said is yet another lie: "...such orders diminish the votes of the citizens who elected the head of the Executive Branch. Defendants’ lawless standing orders are … undermining the democratic process."
The citizens who elected the head of the Executive Branch could reasonably be expected to assume that the person they elected would follow the Constitution and federal laws. He's not doing that. Judges upholding the law against an Executive Branch breaking the law are affirming, not diminishing, the votes of the citizens who elected the President. Citizens did not vote for an end to our democracy. (Granted, some may have wanted Trump to be crowned king, but that wasn't clear on the ballot.) When he was inaugurated, he did what people expect every President to do: He swore an oath to "preserve, protect and defend the Constitution of the United States."
"But in the moment, he and every other judge must use every decision to expose that plot for what it is, an effort to make Americans (judges included) more fearful and less free."
I think Mr. Sarat's point is particularly important in the context of the lack of Democratic leaders willing or able to articulate this message. With the exception of a handful of Democratic Governors, the Democrat party has been woeful in articulating to the American people the "plot".
Unfortunately, the very earliest anything can be done about this lawless regime, this ball-lees maga congress and the catholic inquisition McConnell/Roberts court will be January 2027. I hope we will be able to last that long.
I think the judicial branch has been working diligently. The legislative branch is still on a months long sleepaway vacation. It's difficult to marshal forces when this is the situation. What does hurt the hardworking judiciary is the behavior of the Supreme Court. I think it is time to make this NOT the court of last resort. It must not be allowed, time and again, to override lower court rulings. Today was difficult to stomach when I heard the WH is being allowed to literally ICE LA. When people are hunted down on any other basis than law breaking, it is a dreadful road to hell. On the other hand, it was heartening to hear that E. Jean Carroll damages ruling against trump stands.
The E. Jean Carroll case has yet to be sent to the supine court to have the decision of the Federal Court of Appeals overtuned. We'll just have to wait and see how this finishes up.
If the president isn’t utilizing the law the way it is intended then someone must set him or her straight. Legal advisors and or judges at various levels of the court system must not allow lawlessness from the president. Our Supreme Court is just about allowing anything with this regime. They too must be kept in check even if it takes Congress handing them a rule book to play by. If they don’t like the rules then the justices can be shown the door. The president must abide by the law otherwise they too can face impeachment. We need a congress and a judiciary that enforces the laws.
The courts can issue judgements, but they cannot enforce them. Trump and his administration is willfully ignoring the court decisions, and will continue to do so. Congress is the only tool we have to make Trump adhere to the law and they are allowing him to lay waste our democracy. The Republicans who have the majority are fine with what Trump is doing and the Democrats lack the power to change this and are not using their voices to challenge in an effective way, the havoc Trump is creating. We have a few courageous governors who are using their voice and are actively challenging Trump and getting their message across. Newsom, Pritzker, and a few others are the ones who are becoming the new face of the Democratic Party. We need fighters and they are fitting the bill. Those who are not willing to do this, especially those in Congress, need to be voted out. If you are afraid to challenge the current administration, then you are allowing your constituents to bear the damage that ensues.
A nice piece by a top scholar but missing a piece - namely the role the Supreme Court is playing in what’s unfolding. It is not just that it is enabling many of Trump’s actions under a so-called unitary executive theory, but that it is doing this by disregarding not just precedent but core values that we expect our courts to honor. For example, in determining whether to stay an injunction appellate courts typically look to the harms that will occur if the injunction is or is not stayed. In a number of stays issued by this Court this balancing has been turned on its head. The United States, for example, will not be much worse off if an immigrant is not immediately deported to a country that might torture him and it turns out that the deportation was legal, but the deportee will be far worse off if he is deported and it turns out that the deportation order was invalid. The only justification for this is that the injunction was so clearly invalid that the person acquiring it has no case. But this can hardly be true when two lower courts thought the injunction should issue. So what it means is that without full briefing and argument and without any justification in a written opinion, 5 or 6 justices have already decided the case.
Similarly agreeing that there was a law violation but requiring that the wronged party spend what could be years litigating in a different court to be made whole, as Justice Barrett did in a recent idiosyncratic concurrence, flirs on the face of what justice requires. Without a complicit Supreme Court much that Professor Sarat deplores would not be happening. Of course, without a complicit Supreme Court Court Trump might have been in jail in 2024 rather than running for president.
Thank you Professor Sarat for this post.
Your voice along with Justice Jackson and other undaunted heroes called out here in the Contrarian responds to the moment. When you write, "We need more" we hear you, thank you and stand with you.
"Going forward, judges must not only hold the administration to account under the Constitution, but they also must address the radical constitutional refashioning that is going on"
It would appear that the lower courts are doing far better at this than the justices of the supine court (all lower case on purpose). Time and again, either Roberts puts a temporary halt on a violation that Trump is persuing, or the whole court overrules the lower court desision with some arcane or archaic reach never intended by the Constitution. The Roberts court is deplorable.
This part of what the administration said is yet another lie: "...such orders diminish the votes of the citizens who elected the head of the Executive Branch. Defendants’ lawless standing orders are … undermining the democratic process."
The citizens who elected the head of the Executive Branch could reasonably be expected to assume that the person they elected would follow the Constitution and federal laws. He's not doing that. Judges upholding the law against an Executive Branch breaking the law are affirming, not diminishing, the votes of the citizens who elected the President. Citizens did not vote for an end to our democracy. (Granted, some may have wanted Trump to be crowned king, but that wasn't clear on the ballot.) When he was inaugurated, he did what people expect every President to do: He swore an oath to "preserve, protect and defend the Constitution of the United States."