Rather than criticizing the reasoning and legal analysis of judges who rule against him, President Trump has made an alarming habit out of attacking judges personally any time they hand down a decision of which he disapproves.
Thus, during the campaign, then-candidate Trump got in hot water for his comments about Judge Gonzalo Curiel, suggesting that Curiel’s ethnicity (which Trump in any event got wrong) had something to do with his rulings against Trump University.
And after the Feb. 3 ruling by Judge James Robart — putting on hold the key provisions of President Trump’s controversial executive order on immigration — Trump again took to Twitter. He labeled Robart (who was appointed by President George W. Bush) a “so-called judge,” and suggested that, if any terrorist attacks occur while the executive order remains blocked, Robart (and the rest of the federal courts) should be blamed — in effect, that they’d have blood on their hands.
With that in mind, perhaps the most important words in Thursday’s ruling by the 9th Circuit, the San Francisco-based federal appeals court that refused to set aside Judge Robart’s order, were the first two: “per curiam,” literally “by the court.” The three judges — appointed by Presidents Jimmy Carter, George W. Bush and Barack Obama — thus began their opinion by making it clear that all that followed was spoken in one, collective voice, simultaneously denying the President the opportunity to single them out individually and reinforcing the structural and philosophical independence of the courts from the politics of the moment. This was not a decision handed down by three individual judges; it was a decision handed down by a separate — and not politically beholden — branch of government.
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Ultimately, the bottom line of the decision was quite modest. The Court of Appeals did not strike down the executive order, or even hold that, on the merits, it is likely to be invalidated. All it concluded was that, while courts decide the merits, the district court’s temporary suspension of the executive order should remain in place, simply preserving the status quo while the lawfulness of the executive order can finally be adjudicated. Nothing in the decision prejudges the legality or constitutionality of President Trump’s plan — or whether, as its critics complain, it constitutes unconstitutional religious discrimination and violates the due process rights of countless thousands of U.S. residents and visitors.
But in agreeing with the district court that the executive order is problematic enough to remain on hold pending resolution of these issues, the 9th Circuit reaffirmed not just the independence of the courts, but the reason for that independence — to ensure that government claims of necessity are subjected to dispassionate, sober analysis.
With that in mind, one of the most significant passages of the 29-page opinion came toward the end, when the court explained why it was unconvinced that leaving the executive order on hold jeopardizes our national security. As the panel wrote, “Although we agree that ‘the Government’s interest in combating terrorism is an urgent objective of the highest order,’ the Government has done little more than reiterate that fact.” Instead, “Rather than present evidence to explain the need for the Executive Order, the Government has taken the position that we must not review its decision at all. We disagree.”
To be sure, it is entirely possible that such evidence exists, and the Court of Appeals did not hold to the contrary. But by requiring the government to actually present such evidence, rather than simply accepting its invocation of national security at face value, the court reaffirmed the unique role that independent, life-tenured judges can play in cases tugging at the nation’s emotional and rhetorical heartstrings — “calmly to poise the scales of justice,” as a federal judge wrote in 1807, “unmoved by the arm of power, undisturbed by the clamor of the multitude.”
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There will be more legal battles — both over this executive order and the countless other legally debatable actions taken by the new President thus far and in the weeks, months and years to come. And the President will undoubtedly win some of those battles — as he should. But I can’t help but to think that a small part of yesterday’s ruling was a not-so-subtle effort on the part of three very different federal judges to lay down a marker, and to make it clear to the President that, even if he can bully or run roughshod over other institutions designed to rein in an overzealous executive, the courts are largely immune to his charms, threats and tweets.
Shortly after the ruling came down, President Trump again took to Twitter — writing (in all capital letters) “SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT STAKE!” The courts saw him, all right — and saw through his bluster in the process.
Stephen I. Vladeck, @steve_vladeck, is a professor of law at the University of Texas School of Law and co-authored an amicus brief supporting the challenge to the executive order in the 9th Circuit.
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