Balkinization: Standing Up for “So-Called” Law

Standing Up for “So-Called” Law

Guest Blogger

Martha Minow and Robert Post

On Saturday, President Trump mocked Judge James L. Robart, the federal district court judge who stayed the President’s Executive Order banning travel for individuals from seven predominantly Muslim countries. President Trump tweeted: “The opinion of this so-called judge, which essentially takes law-enforcement away from our country, is ridiculous and will be overturned!” He then expressed contempt for the deliberations of the three-member appellate court convened to review Robart’s order, calling the legal argument “disgraceful,” and remarking that a “bad high school student would understand this.” Why should it matter if our President openly disrespects courts and legal processes?

Some might say, the president should be permitted to disagree with court decisions, as have other presidents. But President Trump does not merely disagree with a court decision; he disparages the very judicial institutions that are in the process of reviewing his executive order.

This disrespect is part and parcel of President Trump’s general orientation. His well-known instinct is to attack anyone who calls him to account — members of Congress, scientists, the civil service, competitors, the media. President Trump seems to divide the world between friends and enemies. His outlook is like that theorized by the German philosopher Carl Schmitt, who believed that politics was an existential struggle for survival requiring us to destroy those who oppose us.

President Trump’s recent Executive Order was drafted to appeal to his supporters during the campaign, to whom Trump had promised a Muslim travel ban. Released without vetting by federal agencies with relevant legal expertise — Homeland Security, Defense, State, Justice -- the Order seemed designed to maximize political impact and minimize legal restraints of craft and professionalism. The legal infelicities of the Order show haste and lack of care. It produced confusion and widespread heartbreak. More than 100,000 people have been affected by the administrations' unpublicized revocation of already-granted visas.

As a candidate, Trump had promised a ban on Muslim immigrants. A travel ban explicitly based on religion would have violated sacred American traditions protecting religious freedom and nondiscrimination. In crafting his Executive Order to invoke such a ban, the President threatened to undermine those traditions, feeding a “clash of civilizations” narrative used by Islamic radicals to recruit those, including disaffected American citizens, who would attack this country.

Why would President Trump nourish such a narrative, which is likely counterproductive and dangerous? Because it is consistent with a view of the world that sharply distinguishes between friends and enemies. Once unleashed, such a view is hard to cabin. The list of enemies keeps expanding. It is no coincidence that reports of hate crimes, of anti-Semitism and anti-Muslim vandalism, are on the rise.

We are deans of respected law schools. We have dedicated our professional lives to the rule of law and to the proposition that law appeals to reason to override violence and hostility.

Law respects disagreement. It patiently considers evidence and advocacy. It listens carefully to the views of all. Each person--not just each citizen-- is equal before the law. Created in ancient times to terminate endless cycles of vengeance and retribution, law substitutes official, publicly justified sanctions for animosity and enmity.

The rule of law is incompatible with a world that is crisply divided between friends and enemies. Legal processes strengthen what we have in common. To attack legal institutions is to attack what holds us together.

That is why it matters when the President of the United States mocks federal courts. When he attacks appellate deliberations as disgraceful, the president undermines the oath that he swore to “preserve, protect, and defend” the Constitution of the United States. It is inconsistent with that oath to attack judges, legal procedures, and the rule of law. The President’s own nominee for the Supreme Court, Judge Neil Gorsuch, has called Trump’s attacks on courts “disheartening” and “demoralizing.”

When the nation’s most powerful office is used to intimidate the institutions of law that have maintained American stability and prosperity since the founding of the Republic, it is time for all who care about this nation to worry. President Trump’s attack on the “so-called” Judge Robart and his “ridiculous” order, his belittlement of appellate judicial argument as “disgraceful,” should concern all who care about the rule of law. We must be vigilant to preserve what makes America precious: the thirst for freedom and fairness, the demands of responsibility and cooperation, the allegiance to law that somehow makes e pluribus unum. Courts and legal institutions are essential to the realization of these many virtues.

If we are to sustain the rule of law, it must not be the concern merely of lawyers. We must all defend it, passionately and whole-heartedly. This moment is not fundamentally about Trump. It is about all of us.

Martha Minow is Morgan and Helen Chu Dean and Professor of Law at Harvard Law School. You can reach her by e-mail at minow at law.harvard.edu

Robert C. Post is Dean and Sol & Lillian Goldman Professor of Law at Yale Law School. You can reach him by e-mail at robert.c.post at yale.edu

Posted 4:59 PM by Guest Blogger [link]