G C
2017-08-27 22:40:52 UTC
https://www.theatlantic.com/politics/archive/2017/08/how-will-
the-courts-respond-to-the-arpaio-pardon/538137/
How Will the Supreme Court Respond to the Arpaio Pardon?
Though its major import is President Trumps official
endorsement of racist discrimination in law enforcement, a
flagrant contempt for judges is the subtext.
In the wake of President Trumps pardon of Arizona Sheriff Joe
Arpaio, reporters are likely to hear words as harsh as
disturbed and concerned floated by anonymous leaders of the
presidents party on Capitol Hill.
There will be few if any leaks from the Supreme Court. But one
must wonder what messages the justices are getting from Trumps
extraordinary pardon. Though its major import is Trumps
official endorsement of racist discrimination in law
enforcement, a flagrant contempt for judges and courts is the
subtext. The issue in the Arpaio case was the very integrity of
the federal judiciary. He was not convicted of an ordinary
crime, but of deliberately disobeying a federal court order and
lying about that; but beyond that, during the litigation that
led to his conviction for criminal contempt, he hired a private
detective to investigate the wife of a federal judge hearing a
case against his office. Any judge can understand the threat
posed by law enforcement personnel who seek to strike back at
judges and their families, perhaps for purposes of blackmail or
revengeand the deep arrogance of a president who regards such
behavior as praiseworthy.
In fact, since even before the election, Trump has brandished
his hostility to judges almost as aggressively as his disregard
of racial decency. When federal district Judge Gonzalo Curiel
was assigned the Trump University civil fraud case, Trump
attacked the Indiana-born Curiel in front of a campaign rally
as Mexican and a total disgrace. When Judge James Robart (a
George W. Bush appointee) of the District of Washington
enjoined the first version of Trumps travel ban, Trump on
Twitter dismissed Robart as a so-called judge" and told his
supporters If something happens blame him and court system.
When another District Judge enjoined his sanctuary cities
defunding order, Trump publicly threatened to break up the
Ninth Circuit. When a terror cell carried out a car attack in
Barcelona earlier this month, Trump immediately zeroed in on
the travel ban case, now pending before the Supreme Court:
The courts must give us back our protective rights, he
tweeted.
Every indication is that Trump will respond to an adverse
Supreme Court ruling on any important issue with a full-
throated assault on the court and on the very idea of judicial
independence. That the courts majority is conservative and
Republican wont matter. Sen. Mitch McConnell can testify to
Trumps lack of respect for his fellow Republicans; and for
that matter so can Chief Justice John Roberts, whom Trump
dismissed during the election campaign as an absolute
disaster because of his vote upholding the individual
mandate portion of the Affordable Care Act.
Supreme Court justices live in a different world than most of
us. They are protected by life tenure, and swaddled in a day-
to-day environment as obsequious as the biblical court of
Nebuchadnezzar. They are rarely racially profiled at traffic
stops, set upon by chanting thugs with tiki torches, or run
over by cars at political protests. Ordinary citizens may feel
the changing winds of politics more quickly and keenly than
justices.
Yet politics, in somewhat distorted form, makes its way into
their protective cocoon sooner or later. Is it possible that
the Arpaio pardon will be the moment that the conservative
justices, or some of them, realize that this is not an ordinary
administration, and that the cases coming before them this fall
have higher than ordinary stakes?
Judges are usually expected to put aside the present political
meaning of legal issueswill this decision help my party or the
other party?and consider them under the gaze of eternity.
Administrations come and go, the theory says; decisions about
the meaning of statutes or the scope of presidential authority
may persist long after this issue has been forgotten. The issue
thus should ordinarily not be, Will this help or hurt Trump?
but In the long run, which conforms better to the wording of a
statute or the structure of the Constitution?
But what if the issue behind present cases is whether, four or
ten years hence, we will have a Constitution or a self-
governing republic at all? How clear would those stakes have to
be before the justices will decide that they may be the only
emergency brake cord in a government threatening to jump the
tracks?
History isnt encouraging. Judges frequently like to roar from
the bench about their independence and high-mindedness; but
when it comes to true independence, these lions of the law
often turn cowardly. Times of war and emergency make them even
more timorous. The court enthusiastically backed Woodrow
Wilsons World War I crackdown on civil liberties; it meekly
surrendered to the Japanese Internment. In two Nixon-era cases,
the court held that media outlets could publish the formerly
secret Pentagon Papers, and that Nixon had to turn over the
smoking gun tape to a federal court. But those decisions,
historically, are anomalous.
Much more typical is the rhetorical switcheroo played by the
court in Ziglar v. Abbasi last term. The plaintiffs in that
case were improperly documented aliens who were snatched off
the street after the 9/11 attack and held for months even
though there was no evidence linking them to terrorism. High-
ranking officials at the Department of Justice ordered them
held unlawfully, and instructed that the conditions be
restrictivewhich in practice meant solitary confinement,
beatings, and lack of sleep. Sixteen years later, they were
still seeking a chance to make their case against the higher-
ups who authorized the mistreatment. The courts majority threw
out their case. Justice Anthony Kennedys opinion contained the
obligatory preen: Nothing in this opinion should be read to
condone the treatment to which [the plaintiffs] contend they
were subjected. But at its heart, the opinions concern ran
entirely toward the powerful: the great danger would be a
decision that would chill the interchange and discourse that
is necessary for the adoption and implementation of
governmental policies.
Trump has made it clear that the limits of the law, and the
powers of the courts, hold no weight in his decision-making,
and indeed will be brushed aside at his convenience.
If the Ziglar opinion is defensible at all (in case its not
obvious, I side with Justice Stephen Breyer, along with Justice
Ruth Bader Ginsburg, who dissented), it is defensible as an
exercise of that what if? vision I mentioned above. That is,
assuming the republic survives, should future executive
officials have to worry about being sued when they make
emergency decisions?
But increasingly, the question for the courtas for Congress,
and for the countryis whether the republic survives not
against external threat but against an unprecedented
unremitting internal assault. A sense of proportion is
necessary in crisis and calm; and even in the midst of shocking
official misbehavior, the Arpaio pardon crosses a line. Trump
has made it clear that the limits of the law, and the powers of
the courts, hold no weight in his decision-making, and indeed
will be brushed aside at his convenience.
Will the justices strike back, or shake a feeble fist and warn
that they'll really do something one of these days?
the-courts-respond-to-the-arpaio-pardon/538137/
How Will the Supreme Court Respond to the Arpaio Pardon?
Though its major import is President Trumps official
endorsement of racist discrimination in law enforcement, a
flagrant contempt for judges is the subtext.
In the wake of President Trumps pardon of Arizona Sheriff Joe
Arpaio, reporters are likely to hear words as harsh as
disturbed and concerned floated by anonymous leaders of the
presidents party on Capitol Hill.
There will be few if any leaks from the Supreme Court. But one
must wonder what messages the justices are getting from Trumps
extraordinary pardon. Though its major import is Trumps
official endorsement of racist discrimination in law
enforcement, a flagrant contempt for judges and courts is the
subtext. The issue in the Arpaio case was the very integrity of
the federal judiciary. He was not convicted of an ordinary
crime, but of deliberately disobeying a federal court order and
lying about that; but beyond that, during the litigation that
led to his conviction for criminal contempt, he hired a private
detective to investigate the wife of a federal judge hearing a
case against his office. Any judge can understand the threat
posed by law enforcement personnel who seek to strike back at
judges and their families, perhaps for purposes of blackmail or
revengeand the deep arrogance of a president who regards such
behavior as praiseworthy.
In fact, since even before the election, Trump has brandished
his hostility to judges almost as aggressively as his disregard
of racial decency. When federal district Judge Gonzalo Curiel
was assigned the Trump University civil fraud case, Trump
attacked the Indiana-born Curiel in front of a campaign rally
as Mexican and a total disgrace. When Judge James Robart (a
George W. Bush appointee) of the District of Washington
enjoined the first version of Trumps travel ban, Trump on
Twitter dismissed Robart as a so-called judge" and told his
supporters If something happens blame him and court system.
When another District Judge enjoined his sanctuary cities
defunding order, Trump publicly threatened to break up the
Ninth Circuit. When a terror cell carried out a car attack in
Barcelona earlier this month, Trump immediately zeroed in on
the travel ban case, now pending before the Supreme Court:
The courts must give us back our protective rights, he
tweeted.
Every indication is that Trump will respond to an adverse
Supreme Court ruling on any important issue with a full-
throated assault on the court and on the very idea of judicial
independence. That the courts majority is conservative and
Republican wont matter. Sen. Mitch McConnell can testify to
Trumps lack of respect for his fellow Republicans; and for
that matter so can Chief Justice John Roberts, whom Trump
dismissed during the election campaign as an absolute
disaster because of his vote upholding the individual
mandate portion of the Affordable Care Act.
Supreme Court justices live in a different world than most of
us. They are protected by life tenure, and swaddled in a day-
to-day environment as obsequious as the biblical court of
Nebuchadnezzar. They are rarely racially profiled at traffic
stops, set upon by chanting thugs with tiki torches, or run
over by cars at political protests. Ordinary citizens may feel
the changing winds of politics more quickly and keenly than
justices.
Yet politics, in somewhat distorted form, makes its way into
their protective cocoon sooner or later. Is it possible that
the Arpaio pardon will be the moment that the conservative
justices, or some of them, realize that this is not an ordinary
administration, and that the cases coming before them this fall
have higher than ordinary stakes?
Judges are usually expected to put aside the present political
meaning of legal issueswill this decision help my party or the
other party?and consider them under the gaze of eternity.
Administrations come and go, the theory says; decisions about
the meaning of statutes or the scope of presidential authority
may persist long after this issue has been forgotten. The issue
thus should ordinarily not be, Will this help or hurt Trump?
but In the long run, which conforms better to the wording of a
statute or the structure of the Constitution?
But what if the issue behind present cases is whether, four or
ten years hence, we will have a Constitution or a self-
governing republic at all? How clear would those stakes have to
be before the justices will decide that they may be the only
emergency brake cord in a government threatening to jump the
tracks?
History isnt encouraging. Judges frequently like to roar from
the bench about their independence and high-mindedness; but
when it comes to true independence, these lions of the law
often turn cowardly. Times of war and emergency make them even
more timorous. The court enthusiastically backed Woodrow
Wilsons World War I crackdown on civil liberties; it meekly
surrendered to the Japanese Internment. In two Nixon-era cases,
the court held that media outlets could publish the formerly
secret Pentagon Papers, and that Nixon had to turn over the
smoking gun tape to a federal court. But those decisions,
historically, are anomalous.
Much more typical is the rhetorical switcheroo played by the
court in Ziglar v. Abbasi last term. The plaintiffs in that
case were improperly documented aliens who were snatched off
the street after the 9/11 attack and held for months even
though there was no evidence linking them to terrorism. High-
ranking officials at the Department of Justice ordered them
held unlawfully, and instructed that the conditions be
restrictivewhich in practice meant solitary confinement,
beatings, and lack of sleep. Sixteen years later, they were
still seeking a chance to make their case against the higher-
ups who authorized the mistreatment. The courts majority threw
out their case. Justice Anthony Kennedys opinion contained the
obligatory preen: Nothing in this opinion should be read to
condone the treatment to which [the plaintiffs] contend they
were subjected. But at its heart, the opinions concern ran
entirely toward the powerful: the great danger would be a
decision that would chill the interchange and discourse that
is necessary for the adoption and implementation of
governmental policies.
Trump has made it clear that the limits of the law, and the
powers of the courts, hold no weight in his decision-making,
and indeed will be brushed aside at his convenience.
If the Ziglar opinion is defensible at all (in case its not
obvious, I side with Justice Stephen Breyer, along with Justice
Ruth Bader Ginsburg, who dissented), it is defensible as an
exercise of that what if? vision I mentioned above. That is,
assuming the republic survives, should future executive
officials have to worry about being sued when they make
emergency decisions?
But increasingly, the question for the courtas for Congress,
and for the countryis whether the republic survives not
against external threat but against an unprecedented
unremitting internal assault. A sense of proportion is
necessary in crisis and calm; and even in the midst of shocking
official misbehavior, the Arpaio pardon crosses a line. Trump
has made it clear that the limits of the law, and the powers of
the courts, hold no weight in his decision-making, and indeed
will be brushed aside at his convenience.
Will the justices strike back, or shake a feeble fist and warn
that they'll really do something one of these days?