Trump has such a poor understanding of the parts of the human experience which require skills to solve difficult and complicated problems, to reason soundly on complex problems with uncertainty, and to be able to compare and to resolve competing needs of people such as judges must to ever grasp why he cannot have what he wants just because he's in the most powerful office in world history. It escapes him. He's not a very good thinker.
24
Minimum sentencing is supposed to stop the coddling of criminals by judges. It's based upon the idea that regardless of the offender's circumstances they should be punished according to the crime for which they are convicted regardless of how they actually came to commit the crime. There is some merit in this argument but when one finds cases where the circumstances are such that the crime was an aberration for that person and that the circumstances which produced it will be unlikely to be repeated, a different sentence should be applied than for the usual offender of that particular law. The minimum sentence laws are part of the reason so many states have overcrowded prisons with many offenders who probably should have never been given the sentences which they were. Overcrowded prisons with persons who were not really nasty people will produce former convicts who have become really nasty people. Instead of making us safer, it produces a lot more people who are more likely to harm the rest of us.
8
Republicans twist every nook and cranny of government into pro-republican PROPAGANDA after conquering all forms of media message at lightening speeds. There's no way yet to overcome their 'advertising' success in spin, hype, lies and diversions.
8
As I read this I thought of Spencer Tracy's movie about the Nuremberg Trials. Much of the movie is dedicated to evaluating the actions of an honorable judge who bows to the will of an insane dictator. Where do judges draw the line in their opinions about unethical behavior? Do they have the obligation to speak out against others in power who threaten justice? When push comes to shove judges and justices can not remain in their ivory towers impervious to the consequences of their rulings. Trump who has always had an adversary relationship with the law is now in a position to do great damage to our legal system. What will Neil Gorsuch do when confronted with laws that seem constitutional in one sense, but violate the spirit of that document? The answer will determine the fate of our country.
26
"What we know, as men" is that Donald trump is a liar and a criminal, who hasn't been caught, yet. NOW may be the time to finally catch him before he harms the entire country.
18
I want to thank you for your eminently readable and continuing commentaries on the Supreme Court. I would like to offer a suggestion concerning any future rulings in which Justice Gorsuch participates. In an analogy to sports records, any decision should be followed by an asterisk, denoting the questionable circumstances surrounding the appointment of Justice Gorsuch.
13
Honest people are at a disadvantage with lies. We tend to give others the benefit of the doubt and treat them as if humanity is a common condition.
We have had the bad luck to elect a president for whom dishonesty, immorality, hatred, and bad faith are the touchstones of his success. He has no qualms about success as his highest goal.
We additionally have the bad luck to have a Congressional majority who are bought and paid for and agree that power and control are their highest goal, regardless of the common demands of humanity and caring for each other.
Oddly, these people call themselves Christians. I'd recommend that they reread the gospels and consider the teachings of Jesus Christ if that is their belief. In my life, the most moral people are atheists. It is odd that people enable the voices in their heads and name that god, and that that voice is cruel, exclusionary, greedy, and prideful.
We are at a crisis in humanity where our very survival, thanks to the global effects of greed, acquisition, materialism, and pollution are likely to bring us, the earth's apex predator, to smash.
If there was ever a time when caring for each other was the only way, the only way to defeat hateful terr'ists, the only way to survive, this is that time.
Wake up! Actions have consequences. We are one family, we humans. United we stand, divided we fall.
We have had the bad luck to elect a president for whom dishonesty, immorality, hatred, and bad faith are the touchstones of his success. He has no qualms about success as his highest goal.
We additionally have the bad luck to have a Congressional majority who are bought and paid for and agree that power and control are their highest goal, regardless of the common demands of humanity and caring for each other.
Oddly, these people call themselves Christians. I'd recommend that they reread the gospels and consider the teachings of Jesus Christ if that is their belief. In my life, the most moral people are atheists. It is odd that people enable the voices in their heads and name that god, and that that voice is cruel, exclusionary, greedy, and prideful.
We are at a crisis in humanity where our very survival, thanks to the global effects of greed, acquisition, materialism, and pollution are likely to bring us, the earth's apex predator, to smash.
If there was ever a time when caring for each other was the only way, the only way to defeat hateful terr'ists, the only way to survive, this is that time.
Wake up! Actions have consequences. We are one family, we humans. United we stand, divided we fall.
37
Under Attorney General Sessions, it's not the Department of Justice, for he has no interest in justice. Perhaps vengeance. Perhaps power. Perhaps retribution. But not justice. Perhaps we should rename it the federal prosecution service and be done with it. His only measure of success is how many of his fellow citizens he can manage to incarcerate and thereby deny the vote, allowing his government to chose its electors instead of the other way around.
26
good comment!
5
Mr. Wall's argument that what Trump asserted as a candidate cannot be considered as describing his purposes as President because of the changed responsibilities as shear misrepresentation of reality. For Trump to have had an entire new consideration of the issue and to have acted according to completely different purposes than he had expressed so recently cannot be sustained by such an argument. There must be a detailed explanation of how he had come to reject the former purposes that he expressed and to have supported the new purposes with clarity and sound reasoning. The only proof is that assurance of the lawyer that his becoming President was enough.
4
While the 9th Circuit has been targeted by Trump as the 'terrible court', no Circuit Court has supported Trump's ban. I believe the Justices will have a very hard time contorting themselves to allow Trump's travel ban, watered-down or otherwise. I will be surprised if SCOTUS takes this case. I believe they will let stand, the decisions of the lower courts. To do otherwise, would change us as a nation of immigrants.
5
Intent is sometimes less important in law where effect is clear.
2
One can close one's eyes, but not one's ears. But no one can un-see or un-hear. As implied by Justice Frankfurter, we can not un-know.
What we can do is to set-aside, in a sense, un-learn. And that is what the Miranda decision enshrines -- the courts shall set aside statements from a suspect that has not been advised of their Constitutional rights. That is possible because the courts function by formal procedure.
So what are we to do about a loudmouth who spouts continuously? One cannot civilize a jerk by ignoring his bad behavior.
To ignore a blow-hard's rants on some Miranda-like metaphor would enable a bully to in effect immunize himself by claiming those exclamations were outside our legal institutions.
That would defy our expectations for civilized behavior and the dream of an America where we accept the struggle to balance freedom, liberty, and responsibility to create a more perfect Union.
What we can do is to set-aside, in a sense, un-learn. And that is what the Miranda decision enshrines -- the courts shall set aside statements from a suspect that has not been advised of their Constitutional rights. That is possible because the courts function by formal procedure.
So what are we to do about a loudmouth who spouts continuously? One cannot civilize a jerk by ignoring his bad behavior.
To ignore a blow-hard's rants on some Miranda-like metaphor would enable a bully to in effect immunize himself by claiming those exclamations were outside our legal institutions.
That would defy our expectations for civilized behavior and the dream of an America where we accept the struggle to balance freedom, liberty, and responsibility to create a more perfect Union.
8
Are there any examples of judges becoming conscientious objectors to the unjust laws they are supposedly forced to uphold?
Or as a class are they complete cowards?
Or as a class are they complete cowards?
The United States Constitution is defended by a strategic triad: the Executive, the Congress and the Judiciary.
The Executive has failed. It has refused even to appoint the officers needed for its operation. It's behavior is erratic and dysfunctional, if not outright treasonous.
The Congress is almost out of action, riddled with hacks and old fools. Bought. Spineless. A paradise for hirelings where the people's voice is muffled by thick layers of dollar bills.
Only the Judges remain. They have taken oaths. Let us now see what value these oaths hold for them. As men. As women. As Americans.
The Executive has failed. It has refused even to appoint the officers needed for its operation. It's behavior is erratic and dysfunctional, if not outright treasonous.
The Congress is almost out of action, riddled with hacks and old fools. Bought. Spineless. A paradise for hirelings where the people's voice is muffled by thick layers of dollar bills.
Only the Judges remain. They have taken oaths. Let us now see what value these oaths hold for them. As men. As women. As Americans.
30
"Only the Judges remain. They have taken oaths. Let us now see what value these oaths hold for them. As men. As women. As Americans."
Alas, those values are about to change, dramatically. Trump is now filling the staggering number of vacancies on the federal bench — purposefully created by Mitch McConnell — with selections from lists compiled by hard-right ideological groups (that also have little, if any, respect for the Establishment Clause).
"White House Announces Slate of 11 Judicial Nominees"
https://www.nytimes.com/2017/06/07/us/politics/trump-judicial-nomination...
Alas, those values are about to change, dramatically. Trump is now filling the staggering number of vacancies on the federal bench — purposefully created by Mitch McConnell — with selections from lists compiled by hard-right ideological groups (that also have little, if any, respect for the Establishment Clause).
"White House Announces Slate of 11 Judicial Nominees"
https://www.nytimes.com/2017/06/07/us/politics/trump-judicial-nomination...
5
Welcome to the Untidy States of America brought to you by Donald J. Trump, the GOP and its supporters, the Trump administration, and the various predatory corporations and industries that are dying to rip it apart even more. Refunds will not be given.
10
Have you noticed how Linda Greenhouse's view of the President's authority to regulate immigration depends on who is the President?
Today she tells us that the courts have legitimately backed the states' objections to President Trump's travel ban.
It seems like yesterday that she was defending President Obama in a case brought by Texas and 25 other states challenging Obama’s attempt to give legal status and work authorizations to more than four million illegal immigrants.
Another reminder that you should never believe it when progressives pay lip service to the rule of law. When it comes to the Constitution and laws of the land, the only question Greenhouse has ever asked is, not what does the law say?, but what she "knows" as a woman.
Today she tells us that the courts have legitimately backed the states' objections to President Trump's travel ban.
It seems like yesterday that she was defending President Obama in a case brought by Texas and 25 other states challenging Obama’s attempt to give legal status and work authorizations to more than four million illegal immigrants.
Another reminder that you should never believe it when progressives pay lip service to the rule of law. When it comes to the Constitution and laws of the land, the only question Greenhouse has ever asked is, not what does the law say?, but what she "knows" as a woman.
2
Ummm, the difference is that Congress has passed a law saying that immigration decisions can't be made based on religion. It is easily arguable that the Trump ban is against Muslims.
Obama's actions, whether you agree with them or not, were not made based on religion.
Context is everything.
Obama's actions, whether you agree with them or not, were not made based on religion.
Context is everything.
14
Many thanks for an engaging and highly informative op-ed.
12
Our country needs a reboot. Thankfully the judges are doing their part to keep us afloat while our other two branches play politics rather than demonstrate leadership and patriotism. Hopefully we will come to our senses soon.
8
Another BIG question to expand your headline: What Can the Judges DO About Trump?
5
Ms. Greenhouse,
You are hardly as smart as you purport to be. Perhaps you have been living in the swamp for too long. What Mr. Trump meant by "us" is the American people. What rights have the courts taken away? The right of the American people to have their elected leaders protect us from terrorists (including Muslim terrorists). This is what we know as men.
You are hardly as smart as you purport to be. Perhaps you have been living in the swamp for too long. What Mr. Trump meant by "us" is the American people. What rights have the courts taken away? The right of the American people to have their elected leaders protect us from terrorists (including Muslim terrorists). This is what we know as men.
1
The right that we have actually lost is to be protected from predatory corporations.
27
RGV --Time for you to look at the news stories and photos of the terrorists, mostly home-grown. Blanket statements about "lost rights" are pretty dumb without decent evidence to back them up.
10
Perhaps if Attorney General Jeff Sessions is found guilty in the Russian investigation, he will be charged with the “most serious, readily provable offense”
27
Donald Trump chafes at being restrained. He lashes out because he is not used to being told what he can and cannot do. His quest for the Nixonian "imperial presidency" is hampered by our legal system, and that's a good thing.
30
Excellent article .Thank you
12
It is possible that Donald Trump's assertion that he could stand in the middle of Fifth Avenue and shoot people and his supporters would remain loyal has an analogy in his view of the Supreme Court: No matter what he says, tweets, or does, he has a five member majority that will always side with him. Hopefully, he is mistaken.
19
The Founding Fathers never envisioned that anyone as unfit, ignorant or immoral as Trump could become the president. We need to amend it to better protect the nation from unfit candidates and foreign interference.
14
Actually, they did envision such a creature, which is why they put in the checks and balances to protect the Republic from such a one as Trump.
And I submit to you that so far, it's mostly working. Has he gotten any of his draconian legislation passed? Except for executive orders that are all going to be challenged in the courts and forcefully protested against by the majority of our fellow citizens, he has not accomplished a thing beyond making a damned fool of himself and causing more than two thirds of the electorate to revile him
Yes, he can and will do serious damage before he is gone, but the Republic will survive him. Whether those in the GOP who continue to go along with this manifestly unfit president and his cabal are quite another matter.
And I submit to you that so far, it's mostly working. Has he gotten any of his draconian legislation passed? Except for executive orders that are all going to be challenged in the courts and forcefully protested against by the majority of our fellow citizens, he has not accomplished a thing beyond making a damned fool of himself and causing more than two thirds of the electorate to revile him
Yes, he can and will do serious damage before he is gone, but the Republic will survive him. Whether those in the GOP who continue to go along with this manifestly unfit president and his cabal are quite another matter.
7
The Founding Fathers also set up the Electoral College. They did not envision is as a rubber stamp for the popular vote in the various states.
7
Have you ever stood before a judge in a criminal court? Ever even been arrested? Have you ever been sued in a civil court? I think we’re all entitled to our different opinions of the justice system.
Ms. Greenhouse just described a heartless administration whose actions even judges are incapable of stopping at times. The good news is that this is because these judges are following the law, and our laws in most cases are passed by people with good intent. As a nation, we'll survive, though the harm that is currently occurring will affect many for the rest of their lives.
9
Always a pleasure to read Linda Greenhouse. I thought i was looking for justice when i went to law school, too, but I soon found that law and justice were separated by money, race, politics, bias, ambition and intransigence."
Nice to know some judges still understand the difference, even is our Attorney General and the guy who plays the president on TV do not.
Nice to know some judges still understand the difference, even is our Attorney General and the guy who plays the president on TV do not.
29
In reality it is not the courts but Mr. Trump's edicts and executive orders that are taking away rights, and not only in regard to immigration, where inhumane situations such as Mr. Magana's are rampant.
His recent executive order that overturns President Obama's order to ban oil drilling along much of the east coast threatens the rights of millions to clean air and water and to make a living from the booming tourism industry along the South Carolina coast in particular.
The oil presumed to be there is not needed for American consumption. It is in fact wanted for export, basically enriching the rich further while the rest of us worry about our environment.
Meanwhile, Mr. Trump and his Republican buddies are working hard to dismantle the Affordable Care Act in order to enrich the wealthy further, while stripping the poor and middle class of the guarantee of decent health care insurance. Many of us believe that health care is a right, not a luxury. But Mr. Trump's threats to stop subsidizing the ACA before putting a new plan in place are weakening the ACA. Then he says that the ACA is 'failing.' No, he is trying to make it fail.
He wants to dismantle Dodd-Frank, a bill that was passed to protect consumers against the excesses that led to the Great Recession in 2008. This bill has helped consumers retain millions of dollars, but Republicans say it is a bad bill. Why? Because it regulates businesses.
Mr. Trump cares naught for the law.
His recent executive order that overturns President Obama's order to ban oil drilling along much of the east coast threatens the rights of millions to clean air and water and to make a living from the booming tourism industry along the South Carolina coast in particular.
The oil presumed to be there is not needed for American consumption. It is in fact wanted for export, basically enriching the rich further while the rest of us worry about our environment.
Meanwhile, Mr. Trump and his Republican buddies are working hard to dismantle the Affordable Care Act in order to enrich the wealthy further, while stripping the poor and middle class of the guarantee of decent health care insurance. Many of us believe that health care is a right, not a luxury. But Mr. Trump's threats to stop subsidizing the ACA before putting a new plan in place are weakening the ACA. Then he says that the ACA is 'failing.' No, he is trying to make it fail.
He wants to dismantle Dodd-Frank, a bill that was passed to protect consumers against the excesses that led to the Great Recession in 2008. This bill has helped consumers retain millions of dollars, but Republicans say it is a bad bill. Why? Because it regulates businesses.
Mr. Trump cares naught for the law.
54
As much as I loathe Trump and his defiant Muslim travel ban, I agree that comments made outside the four corners of the order itself, should not be relevant in determining its intent. If they shoe were on the other foot one day, we will be glad that we upheld this principle.
1
Legal edicts such as this don't live in a bubble, and the courts must consider what is happening "outside the four corners of the order itself", if their decision is to have any validity. Arguing that if the shoe were on the other foot, we would want the court *not* to consider what has evolved in society, flies in the face of one of the very reasons we give the federal judiciary lifetime appointments - so that they can take the long view, based upon the actual effects of the application of a law or (in this case) an executive order. If that were not so, we wouldn't need humans as judges at all - just a computer like "Deep Blue", which could sit there and apply some algorithm. We've seen what that kind of rigid adherence to some perceived "letter of the law" by the courts have done to us before - you need look no further than the "Dred Scott" decision.
18
Trump's travel ban has the force of law. It has long been the practice in this country to determine the "intent" of the drafters of legislation by considering their statements. I tended to agree with the government's argument that the statements of a political candidate, who may engage in "puffery" to lure voters, may not be reliable indicia of the intent underlying later orders, I cannot and will not agree that a president's statements regarding his intentions are irrelevant. Trump the candidate may have found it profitable to appeal to the basest beliefs of his voters. Trump the president sits in a very different position. His assertion that, by upholding the First Amendment guaranteeing freedom of religion, the courts have interfered with "our" rights is a violation of the very rights he swore to protect.
7
John Adams warned: “[A]varice, ambition, [or] revenge . . . would break the strongest chords of our constitution as a whale goes through a net.”
Moby Trump is now straining against the very fabric of our constitutional system.
Fortunately, Judges--unlike Trump's see-no-evil, hear-no-evil, smell-no-rot GOP supporters--still fulfill their constitutional duties.
President Trump has nothing but disdain for democratic norms. His GOP legislative enablers evidence this disdain as well.
The leaders of a democratic republic must adhere to what George Washington termed “republican virtues”—virtues developed through adherence to norms such as respect for the rule of law; respect for the three co-equal and independent branches of the federal government; respect for political opponents and a willingness to give their arguments a fair hearing; faithful performance of the civic duties that attend one’s station; respect for public offices and officials; and an acknowledgment of facts when engaged in policy debates.
Other than Trump, what president has boasted that no law prohibits presidential conflicts of interest? Has been so disdainful of the judiciary, of the intelligence community, of the free press, of diplomacy and of international agreements? Has congratulated and praised dictators? Has refused to release his tax returns? Has allegedly engaged in secret meetings with lobbyists for foreign interests? Has so frequently resorted to lies and diversions?
Moby Trump must be impeded.
Moby Trump is now straining against the very fabric of our constitutional system.
Fortunately, Judges--unlike Trump's see-no-evil, hear-no-evil, smell-no-rot GOP supporters--still fulfill their constitutional duties.
President Trump has nothing but disdain for democratic norms. His GOP legislative enablers evidence this disdain as well.
The leaders of a democratic republic must adhere to what George Washington termed “republican virtues”—virtues developed through adherence to norms such as respect for the rule of law; respect for the three co-equal and independent branches of the federal government; respect for political opponents and a willingness to give their arguments a fair hearing; faithful performance of the civic duties that attend one’s station; respect for public offices and officials; and an acknowledgment of facts when engaged in policy debates.
Other than Trump, what president has boasted that no law prohibits presidential conflicts of interest? Has been so disdainful of the judiciary, of the intelligence community, of the free press, of diplomacy and of international agreements? Has congratulated and praised dictators? Has refused to release his tax returns? Has allegedly engaged in secret meetings with lobbyists for foreign interests? Has so frequently resorted to lies and diversions?
Moby Trump must be impeded.
19
“We need to be smart, vigilant and tough. We need the courts to give us back our rights.”
Who does President Trump mean by “us”? And what rights have the courts taken away? I’m wondering. And, I suspect, so are the judges. What we know as men. Women, too.
--------------------------
May I help you understand these words, Linda? You seem genuinely confused and wanting to understand, so let me offer up:
"We" are the American citizens who duly elected Donald Trump, and who are concerned with the rise of Islamic terrorism killing innocent people in the world.
"We" want our borders secured, period. "We" want to know who is coming and going, who is taking wives abroad and bringing them back in, who is leaving the country for terrorist training camps like Libya and Syria then re-entering, etc.
"We" want our duly elected officials to use their powers to limit the numbers of foreigners coming in from Muslim countries, specific Muslim countries, until we can properly vet them, understand the purpose of their travels and who they are bringing in with the, etc. "We" are okay with a temporary hold, or temporary restrictions, just as we have always had in our country's history, in order to not become hostage to our country's immigration policy.
I suspect the judges, safely removed from most public contact and privately sheltered in safety, so not share some of the public's concerns about safety. They can quibble over procedures because they like the current status quo.
Who does President Trump mean by “us”? And what rights have the courts taken away? I’m wondering. And, I suspect, so are the judges. What we know as men. Women, too.
--------------------------
May I help you understand these words, Linda? You seem genuinely confused and wanting to understand, so let me offer up:
"We" are the American citizens who duly elected Donald Trump, and who are concerned with the rise of Islamic terrorism killing innocent people in the world.
"We" want our borders secured, period. "We" want to know who is coming and going, who is taking wives abroad and bringing them back in, who is leaving the country for terrorist training camps like Libya and Syria then re-entering, etc.
"We" want our duly elected officials to use their powers to limit the numbers of foreigners coming in from Muslim countries, specific Muslim countries, until we can properly vet them, understand the purpose of their travels and who they are bringing in with the, etc. "We" are okay with a temporary hold, or temporary restrictions, just as we have always had in our country's history, in order to not become hostage to our country's immigration policy.
I suspect the judges, safely removed from most public contact and privately sheltered in safety, so not share some of the public's concerns about safety. They can quibble over procedures because they like the current status quo.
1
That answers the “us” (i.e., Trump supporters, a subset of the American people). So then the question becomes, what rights have been taken away from Trump supporters and how can the courts restore those rights? And: if successful, how would it affect the rights of the full set of American people?
6
"We" are not "you", and your insulting comment that assumes that judges are "safely removed from most public contact" is just the type of authoritarian garbage that Trump himself is fond of spewing. Authoritarian because what you must first do to become Emperor is get rid of the lawyers. They're just meddlesome and in the way, aren't they? This is not a discussion about "temporary holds", or "temporary restrictions." You try to sound reasonable -
"WE are okay with a temporary hold" when you know that it is not meant to be temporary at all! This is about a president who will not abide by the law, and will not be restrained by the requirements of his office. And for those of us who did not vote for him - and we are in the majority - we're tired of listening to the white supremacist line spouted by you and those like you who claim that this so-called "ban" makes anyone safer. In fact, it does *exactly* the opposite.
"WE are okay with a temporary hold" when you know that it is not meant to be temporary at all! This is about a president who will not abide by the law, and will not be restrained by the requirements of his office. And for those of us who did not vote for him - and we are in the majority - we're tired of listening to the white supremacist line spouted by you and those like you who claim that this so-called "ban" makes anyone safer. In fact, it does *exactly* the opposite.
10
Sorry but "you" the citizens that voted for Donald Trump did NOT elect him. "Populist" Trump lost the popular vote. It was only our strange electoral college system that enabled him (and Bush) to take office. Both lost the popular vote .
Also I would hope that "you" are also concerned with the outrageous number of gun deaths in this country due to the flood of guns in the possession of its citizens since you worry so much about terrorists that you would ban anyone that practices the same religion.
Finally since you mention "specific Muslim counties" in your post perhaps you can explain why NONE of the counties listed are home to any of the terrorists that attacked us, while Saudi Arabia and Iraq are not listed in the latest ban.
Also I would hope that "you" are also concerned with the outrageous number of gun deaths in this country due to the flood of guns in the possession of its citizens since you worry so much about terrorists that you would ban anyone that practices the same religion.
Finally since you mention "specific Muslim counties" in your post perhaps you can explain why NONE of the counties listed are home to any of the terrorists that attacked us, while Saudi Arabia and Iraq are not listed in the latest ban.
5
Judge Reinhardt's concurrence is inappropriate. It is dripping with disdain for a coordinate branch of government while conceding that it is the correct legal result. Both sides of the political spectrum purport to want judges to apply the law fairly and faithfully; they both purport to dislike "activist" judges. Nonetheless, both sides embrace decisions like Reinhardt's (or Kozinski's if you're on the right) that go well beyond adjudicating the case before the court. You'll never like the outcome in every case before you as a judge--that is a given. If you want to write the laws that the courts enforce, however, then step off the bench and run for office.
I don't feel bad for Wall at all. The oath of office did nothing for trump who defiles that oath and the oval office with every breath.
6
Let's hope the Supreme Court, in a majority decision, votes with it's head and not the whims of the GOP.
13
Great column but scary.
I fear for our country. I have spend time in the rural south. The culture there cannot be appreciated without spending lime listening and observing. In many ways the south is still back in precivil wars days.
I am not surprised that Sessions has taken the stances he has regarding prosecutions. He is unfit to be AG and I believe many republicans know this but will not admit it.
Elites have always run this country but now the wrong kind od elite are in charge, the southern plutocrats. Trump fits right in with this crowd.
Will the courts standup? I fear not.
I fear for our country. I have spend time in the rural south. The culture there cannot be appreciated without spending lime listening and observing. In many ways the south is still back in precivil wars days.
I am not surprised that Sessions has taken the stances he has regarding prosecutions. He is unfit to be AG and I believe many republicans know this but will not admit it.
Elites have always run this country but now the wrong kind od elite are in charge, the southern plutocrats. Trump fits right in with this crowd.
Will the courts standup? I fear not.
15
Judges Reinhart, Gregory and Bennett may be upset over what is coming out of the Justice Department and the White House. Do you really believe that Justices Gorsuch, Thomas, Alito and Roberts feel the same way? Don't be surprised if they've already decided to rubber-stamp whatever the Administration does.
8
A judge is a judge, not a psychoanalyst. What matters is the regulation, law, or executive order before him, not the intentions of its author. The Supreme Court should overturn the forays into the Presidential mind sanctioned in lower courts and stick to the text.
1
When the author of the text declares " it is a ban and I will enforce it as a ban despite the text declares it is not a ban" , can you honestly say comments outside the text of the document are irrelevant?
The judges are not trying to interpret what he "really means". They don't have to. He is telling us what he really means. Shouldn't we listen to him?
The judges are not trying to interpret what he "really means". They don't have to. He is telling us what he really means. Shouldn't we listen to him?
18
The judiciary will be slowly, or not so slowly taken over by ideologues who will support the rich in every way and help the religious right to impose Christianity or more likely their perverted version of it, on all of us. All in the name of White Nationalism. The judiciary, much to the chagrin of Trump and the right, have been a buffer against this anti democracy tide but as they get fired and replaced all of us are going to be in peril as the rich and the pseudo religious corner us with Christian Sharia law and increasingly punitive Corporate law. Socialism for pseudo religion and the rich, the rest of us probably ought to think about moving away from here except that Trump has now made a law that says in order to get a visa you have to submit to a complete social media search. They're going to try to trap us here so they can punish us for our hubris. You'd think they'd like us to leave but the giant sucking sound of all that capital leaving is just too much for corporate America. "You can't leave, we haven't finished picking your pocket!" Also, who better to fill the prison industrial complex with but non believers, people of color, LGBT, or anyone else that these lunatics can imagine.
8
"wiping the slate clean of the past is almost never an option". If that's the case how did we get money is speech and corporations are people ?
4
I believe judges can find ways around these cruel, inhumane, and more importantly, senseless, rulings. Didn't our dictator say he wanted to focus on the "bad hombres?" Had this man broken a law? If there was no room for fancy footwork, then why do corporate wrong-doers always avoid prosecution while poor people land in jail for years for petty crimes.
11
I would remind Judges Reinhardt and Bennett of Emerson's quote that "a foolish consistency is the hobgoblin of little minds", isn't one of the reasons we have judges to redress miscarriages of justice?
1
Dear Ms. Greenhouse,
Please don't think the "Courts" are anything that's just held in disdain by President Trump! Try being the victim in a courtroom and find out how fast you find the court deserves to be ridiculed and held in absolute and utter contempt!
Nuff Said...Dennis
Please don't think the "Courts" are anything that's just held in disdain by President Trump! Try being the victim in a courtroom and find out how fast you find the court deserves to be ridiculed and held in absolute and utter contempt!
Nuff Said...Dennis
Trump says believe me, not your lying eyes.
6
No man, or woman, is above the law. That includes the ignorant, uninformed, and seriously deficient president.
7
I wish I could be sanguine about the Supreme Court's ability to actually function like a court. Instead I just see a bunch of paid boot lickers who can supply the verbiage necessary to achieve whatever end Don Corleone wants.
2
Roy Cohn was a lawyer who was disbarred for unethical practice.
He had been a lawyer for Senator McCarthy.
He was very aggressively cruel, hurting people on purpose. Eventually was disbarred.
In years past, Roy Cohn gave D. Trump legal and strategic advice and guidance.
Here are some of Cohn's ways of dealing.
"-I bring out the worst in my enemies and that's how I get them to defeat themselves."
"-Go after a man's weakness, and never, ever, threaten unless you're going to follow through, because if you don't, the next time you won't be taken seriously."
- "I don't want to know what the law is, I want to know who the judge is."
- "I don't write polite letters. I don't like to plea-bargain. I like to fight."
He had been a lawyer for Senator McCarthy.
He was very aggressively cruel, hurting people on purpose. Eventually was disbarred.
In years past, Roy Cohn gave D. Trump legal and strategic advice and guidance.
Here are some of Cohn's ways of dealing.
"-I bring out the worst in my enemies and that's how I get them to defeat themselves."
"-Go after a man's weakness, and never, ever, threaten unless you're going to follow through, because if you don't, the next time you won't be taken seriously."
- "I don't want to know what the law is, I want to know who the judge is."
- "I don't write polite letters. I don't like to plea-bargain. I like to fight."
6
We'll soon see if Trump can make a mockery of the United States Supreme Court with his thinly veiled Muslim Religious Travel Ban. And we'll also see if Justice Gorsuch is worthy of the seat he now holds or if he is merely a puppet of the con artist in the White House. Religious travesty: "It's hard to define" observed Justice Potter Stewart (in relation to pornography), "but I know it when I see it".
5
Obviously Frankfurters humane logic doesn't apply to Gorsuch. Trucker you should have froze to death in your truck if you wanted to keep your job. That's the rule no matter how stupid.
10
Think of the so-called "right" to abuse others. The freedom to abuse others does not make good men. Trump is a small man. A child. A denier. A con-man. He demeans America. He makes "us" smaller. A small mind. A narrow mind. A divided mind. He encourages division and degradation of human dignity.
I could go on, but we've heard it before. And we know it well. He expects loyalty, no matter how degrading.
I could go on, but we've heard it before. And we know it well. He expects loyalty, no matter how degrading.
3
There was a saying by one justice in another court when considering granting review - "We need this case like we need a lokh in kop." We need this case like we need a hole in the head. The Supreme Court should deny the petition for cert, praising the thoughtful and well supported decisions of the lower courts.
3
Judges are taking on a heavy responsibility to help keep our society in some semblence of order in the midst of chaos. I am increasingly grateful for their efforts, but they can't do it alone, as demonstrated by the minimum sentence and immigration case examples.
The executive branch is out of control. Much of the legislative branch is shrugging their shoulders and don't seem to care about any of our concerns. But we're also culpable - we are the ones who chose the people who fill those roles. We need to elect representatives who have moral courage, strength of purpose, and who won't be swayed by special interests or loyalty to party ideology. They are supposed to be representing all of us - a fact that I think many of them have forgotten.
If it's only the judges who see the fragility and real danger in our current situation - if it's only the judges who are willing to step up and do the right thing - then we're in real trouble.
The executive branch is out of control. Much of the legislative branch is shrugging their shoulders and don't seem to care about any of our concerns. But we're also culpable - we are the ones who chose the people who fill those roles. We need to elect representatives who have moral courage, strength of purpose, and who won't be swayed by special interests or loyalty to party ideology. They are supposed to be representing all of us - a fact that I think many of them have forgotten.
If it's only the judges who see the fragility and real danger in our current situation - if it's only the judges who are willing to step up and do the right thing - then we're in real trouble.
10
There is an even more fundamental issue than Executive intention. Does the President get to define in a vacuum what constitutes a national security risk? This is complementary to the question of intention and presidential animus. But it precedes and supersedes it. Intention is deduced from an analysis of actual risk posed. But does the president have the right to assume unilaterally that 6 countries pose a risk? Imagine if the president, angered over German slights, had determined that German immigration and visitors are a national security risk. There would be no question of religious animus or any other Constitutional basis for denying the subsequent ban. So does he get away with denying access to Germans?
The facts are clear. The countries are Moslem and they do not pose a risk in light of current vetting being done. Not for 20 years has there been an incident. On the other hand Iraq was dropped from the list for political expediency. And decisions on Pakistan, Saudi Arabia, (Indonesia?) that should require vetting and bans?
It is the claim to authority to unilaterally interpret what is a security risk that threatens our governance. Does Trump really have the liberty to redefine reality according to his whims? Let's hope not!...
The facts are clear. The countries are Moslem and they do not pose a risk in light of current vetting being done. Not for 20 years has there been an incident. On the other hand Iraq was dropped from the list for political expediency. And decisions on Pakistan, Saudi Arabia, (Indonesia?) that should require vetting and bans?
It is the claim to authority to unilaterally interpret what is a security risk that threatens our governance. Does Trump really have the liberty to redefine reality according to his whims? Let's hope not!...
11
The executive has fairly wide discretion under the law in exercising this kind of a judgment call. It's the unconstitutional discriminatory purpose, not reasoned arguments that security could be enhanced better or differently, that renders this order invalid,
1
Ms Greenhouse, please keep writing. we need your knowledge and thoughtfulness. As we all know, there is a difference between law and justice. The former is more easily defined than the latter. Justice, among other things, requires strict intellectual honesty. The law - not always.
29
Excellent column, very informative.
It is evident to most that Trump by temperament and (flawed) character traits is basically a dictator.
He clearly believes he's "the man", and can make the law and force everyone to do as he says, without regard to the truth, ethics or the constitution.
You can only hope the right wing court will show some actual integrity and common sense in rejecting trump's illegal edicts.
Unfortunately as history shows, it is too often party above the law or what is right. This court in its way is as scary as trump.
It is evident to most that Trump by temperament and (flawed) character traits is basically a dictator.
He clearly believes he's "the man", and can make the law and force everyone to do as he says, without regard to the truth, ethics or the constitution.
You can only hope the right wing court will show some actual integrity and common sense in rejecting trump's illegal edicts.
Unfortunately as history shows, it is too often party above the law or what is right. This court in its way is as scary as trump.
9
So what I take away from this is that the travel ban actually would be legal but for the musings of President and candidate Trump. If that's accurate, then at what point does the statue of limitations with respect to his statements expire? At the end of his term? Upon the next terrorist attack by someone from the implicated countries? This seems to be a very slippery slope - trying to divine the intent behind laws intended to protect national security.
3
Statements don't have a statue of limitations.
2
Words matter. There is nothing new about courts considering the broader context in which government actions are taken by the executive or the legislative branches.
1
Mike - you pose a question that normally applies to conviction for any offense except those that are "strict liability" offenses (e.g. speeding or statutory rape). Intent, or mens rea in legal terminology, is often an issue in criminal cases. It's why we have an insanity defense (come to think of it that might work for Trump as time goes by...).
The answer to your question is that the plaintiffs must show discriminatory intent -it's part of their burden. These utterances may become less persuasive as evidence of intent as time goes by, but they remain relevant and admissible. But they still remain persuasive in the absence of any evidence to the contrary.
The answer to your question is that the plaintiffs must show discriminatory intent -it's part of their burden. These utterances may become less persuasive as evidence of intent as time goes by, but they remain relevant and admissible. But they still remain persuasive in the absence of any evidence to the contrary.
1
Sew the wind, reap the whirlwind. It started with Bush v Gore, proceeded to Citizens United, and now, surprise, surprise we have a person inhabiting the White House who believes he is not only above the law, but above anyone's judgement at all. And do we find the white men in charge protecting our democracy? No, we find them lining up to line their pockets, most of whom have enough money already to secure the future of countless of their generations. Do we have these "great business leaders" leading? No, they want to tear up the wilderness, pollute the lakes, streams and oceans for fossil fuels, when already the boom in the economy and JOBS is in renewables. They're way past venal and have arrived at cannibal.
Yeah, only white men can lead, but they must be over 50.
Yeah, only white men can lead, but they must be over 50.
15
Sow the wind. Unless you mean with a needle and thread.
Trump, and others like him, play the cupidity of some US judges to the hilt. Far too few motions to dismiss are allowed in US courts, and the costs of litigation drive people to settle with psychopaths, and provide livings to people shaking down insurance companies with false claims.
The Ninth Circuit was known for its disdain of any law it did not agree with well before Trump came to office. The judge who wrote that dissent can run for Congress if he wants to change immigration law. He signed up to judge whether the law is applied correctly, not to judge whether laws are fair
2
Seriously? A judge is not permitted "to judge whether laws are fair?" Time to review the basics concerning judicial review. See Marbury v. Madison, 5 U.S. 137 (1803).
1
The entire purpose of the judiciary would come into question if, as you say, a judge is to simply "apply the law correctly." If that were true, then what purpose do judges serve? We could program a robot to "apply the law correctly" and be done with it. That is surely not what was envisioned by the drafters of the Constitution.
3
You have a complete ignorance of what judges do particulaly at the appellate level.
1
Men and women in the Trump administration are being forced to look within and make difficult decisions based on personal ethics and morality that heretofore had not been required. This is, perhaps, a silver lining. If we, as a nation, can survive the present ordeal then I have hopes that subsequent administrations and the country, as a whole, will benefit from this kind of introspection. The degree of mendacious behaviour exhibited by some members of the Trump presidency, including that of the President himself, should serve as a warning to all that participating in such a regime can have consequences, as some have already found to their dismay. Mr. Wall might want to reconsider his role as a "hatchet man" for Mr. Trump.
2
Very well said.
1
"What we know as men. Women, too."
Alas "man" is not a universal concept or experience:
1) Whatever Justice Thomas knows as a black man doesn't seem reflected in his opinions on the voting rights, the accused's rights, of most black men's experience in America.
2) Whatever the white justices who upheld Japanese internment during WW II (which has never been overturned) know as men do not seem to know the experience of Japanese-American men.
3) Are we then to expect that Justices Alito and Roberts and Gorsuch will transcend their white Catholic Harvard manness to be of one with the Muslim refugee Arab man?
"I would hope that a wise Latina woman, with the richness of her experiences, would more often than not reach a better conclusion than a white male who hasn't lived that life," Sonia Sotomayor.
Alas "man" is not a universal concept or experience:
1) Whatever Justice Thomas knows as a black man doesn't seem reflected in his opinions on the voting rights, the accused's rights, of most black men's experience in America.
2) Whatever the white justices who upheld Japanese internment during WW II (which has never been overturned) know as men do not seem to know the experience of Japanese-American men.
3) Are we then to expect that Justices Alito and Roberts and Gorsuch will transcend their white Catholic Harvard manness to be of one with the Muslim refugee Arab man?
"I would hope that a wise Latina woman, with the richness of her experiences, would more often than not reach a better conclusion than a white male who hasn't lived that life," Sonia Sotomayor.
5
Again, Ms. Greenhouse, your opinion cuts to the heart of the matter. Thank you.
7
Thank you for writing this column.
WHAT WE KNOW AS HUMANS Is that Trump's savagery knows no bounds. He actions are those of a psychopath, utterly without empathy, remorse or regard for the law. Trump's demented mentor, Roy Cohn, a disbarred attorney, notorious attack dog for Joe McCarthy's Trumped up (pun intended) witch hunt trials for "communists," based on Trumped up evidence provided from the "secret" files of J. Edgar Hoover. Those three men, among the most evil in the US in the 20th century, were deeply formative for a younger Trump. For example, when he and his father refused to rent to African Americans in apartments they built they were charged with federal violation of the Fair Housing Act. Cohn responded by suing the government for $100 million. The times were far less litigious than today. Or there may have been other subterfuge by Cohn and Trump. What is essential is an understanding of what formed Trump's character, or lack thereof. As a child, he started food fights at birthday parties. So he was a little savage. That is such an extreme behavior that I can tell you as a teacher, I've never heard of a case of kids doing that, not even once, in nearly 50 years of working with children. Trump was antisocial as a child, a young man, during his life up until now. Why would anyone believe that he is capable of changing his deeply ingrained patterns of behavior now, at 70? Leave alone his antisocial personality traits. For laws to elevate humans, judges must be both fair and humane.
6
The was once a Supreme Court that decided infanticide was a Constitutional right. There was once a Supreme Court that allowed a liberal democrat from one of the wealthiest families in America to lock up American citizens based on their ancestry. There was once a Supreme Court who sustained a President's illegal suspension of habeas corpus and trial by jury. So we can have a Supreme Court that protects us by sustaining the denial of entry of suspected terror sympathizers, foreign nationals of unfriendly nations or other undesirables. Either now, or soon enough as the ancients pass on. Ms Greenhouse gets one vote; she cast it. Sixty-five million and counting say otherwise.
For the sake of conversation, let's turn a blind eye to your use of the word "infanticide" and pretend your making an objective argument.
65 million people, for better or worse, elected Trump as President. Fine. The question is not whether or not Trump holds the office of the Presidency, but whether or not ANYONE can question him on any matter whatsoever. From what I've seen so far Trump and his supporters (you among them, apparently) the media is wrong to contradict his assertions of fact, the REPUBLICAN Congress is wrong for not rubber stamping his legislation, the lower courts are wrong for even examining his travel ban (his words not mine), ethics committees are wrong to question his conflicts of interest, Comey was wrong for not swearing loyalty, Sessions was wrong for recusing himself from an investigation that involved him, Rosenstein was wrong for appointing a special counsel, NATO is wrong to expect the President to affirm our country's commitment to Article 5 (the common defense article that only WE have ever invoked), liberals are wrong to think the "greatness" means something other than jingoism, and the list goes on and on.
Are you in that same camp as Trump's aid, Stephen Miller, who said that the President simply "will not be questioned?" Is it just anything goes until the next Presidential election? Sorry to disappoint.
65 million people, for better or worse, elected Trump as President. Fine. The question is not whether or not Trump holds the office of the Presidency, but whether or not ANYONE can question him on any matter whatsoever. From what I've seen so far Trump and his supporters (you among them, apparently) the media is wrong to contradict his assertions of fact, the REPUBLICAN Congress is wrong for not rubber stamping his legislation, the lower courts are wrong for even examining his travel ban (his words not mine), ethics committees are wrong to question his conflicts of interest, Comey was wrong for not swearing loyalty, Sessions was wrong for recusing himself from an investigation that involved him, Rosenstein was wrong for appointing a special counsel, NATO is wrong to expect the President to affirm our country's commitment to Article 5 (the common defense article that only WE have ever invoked), liberals are wrong to think the "greatness" means something other than jingoism, and the list goes on and on.
Are you in that same camp as Trump's aid, Stephen Miller, who said that the President simply "will not be questioned?" Is it just anything goes until the next Presidential election? Sorry to disappoint.
122
I wondered about that "give us back our rights" line as well. What does it mean? Here's one possibility: A line used by many Trump supporters was (I'm paraphrasing) "We need to take our country back again," which puzzled me greatly. Who took it away? Why did they take it away? What did it mean? Turned out, it was veiled racism -- Obama, by virtue of being black and of having won two elections, had taken "their" country away. I can only conclude "give us back our rights" means let us kick around people we don't like because they're Muslim.
13
As you co-editorialists observe, the Donald is more of a "Don" than a president. That explains a good deal.
1
Attack and try to intimidate the press and judiciary, spout nonsense about returning the country to a better time, reminds me of a famous European figure who began his rise to power about a century ago.
5
Another fantastic op-ed, Linda.
Could you explain to us why Jeff Sessions isn't being prosecuted for perjuring himself before a US Senate Committee, when he told Al Franken he hadn't met with any Russians?
Is it suddenly okay to lie to Congress now?
And of course, when he is prosecuted, the prosecutor should seek the maximum penalty under the law. Sessions wouldn't want it any other way.
Could you explain to us why Jeff Sessions isn't being prosecuted for perjuring himself before a US Senate Committee, when he told Al Franken he hadn't met with any Russians?
Is it suddenly okay to lie to Congress now?
And of course, when he is prosecuted, the prosecutor should seek the maximum penalty under the law. Sessions wouldn't want it any other way.
14
Our federal court system is the envy of the world; it's unfortunate the ignorant man temporarily residing in the White House does not share that view, but his disdain for our courts and the judges who preside in them only serve to make Trump appear small and petty. His clumsy efforts to cast doubt on our judicial system will backfire.
4
Shorter version: Most Judges are NOT fooled, or amused, by the film-flam antics of the Presidential Apprentice. Fortunately.
4
The question is: will the ideology of the justices "trump" this knowledge about which Frankfurter speaks? In other words, to borrow a thought from Paul Simon, do justices "know what they want to know, and disregard the rest"?
2
All instincts about what judges appointed for lifetime tenure ought to consider important about respect for courts and the rule of law may go out the window with a bizarre personality in the White House like Donald Trump.
We should hope that Linda Greenhouse is correct (she usually is), but extremely conservative judges may have a less lofty agenda than apolitical judges, law professors and attorneys who have unshakeable faith in our system of jurisprudence and justice.
Some of us have grown somewhat cynical about the Roberts Court. We worry that the majority may twist Justice Frankfurter’s warning that judges should not be ignorant “of what we know as men” to justify abrogating due process and the equal protection of the laws.
We should hope that Linda Greenhouse is correct (she usually is), but extremely conservative judges may have a less lofty agenda than apolitical judges, law professors and attorneys who have unshakeable faith in our system of jurisprudence and justice.
Some of us have grown somewhat cynical about the Roberts Court. We worry that the majority may twist Justice Frankfurter’s warning that judges should not be ignorant “of what we know as men” to justify abrogating due process and the equal protection of the laws.
10
If the judges yield to this monster, then the whole doctrine of separation of powers goes under. Then again, so much has already gone under! Including the Ship of State.
8
I am not yet sick and tired of winning as he likes to say, but plan to be on the day which I hope is coming soon when the American people show up at the front door of the White House to run him out of town on a rail.
8
Not going to happen
It has been more than 90 days since various judges have struck down Trump's two travel bans.In other words, Muslims have continued to travel to the United States. And none of them has committed an act of terrorism. The only terrorism I'm aware of was that of a white nationalist in Oregon who killed two men and seriously wounded a third while they were defended two Muslim girls from his racist rants on a train. Instead of picking on Muslims, perhaps Trump should ban all his racist supporters from trains?
14
Unimpressed by judges who follow the law, under protest, and still impose lengthy minimum mandatory sentences on undeserving defendants. Do they expect a medal for speaking out? Does it salve their conscience? Bottom line, a federal district court judgeship is a coveted position - you get wield great power (as in striking down Trump's travel ban), get to wear black robes of an His Honor, and preferred tables at high end eateries. Why should they resign? There are plenty of willing replacements. Still, kudos for Judges Stephens and Bennett, their anguish will go down in a place of honor in the annals of judicial history.
1
A brilliant article which should be read by everyone, especially those who support Trump's rather disheartening policies.
9
I think that if the travel ban (or Muslim ban) makes it to the Supreme Court, we will see what will happen to our nation. If there is a 9-0 vote to uphold the appellate courts, like when the Supreme Court voted against Nixon in regard to his tapes, then maybe we can breathe a sigh of relief.
I fear, however, that the court will not understand the need for a unanimous opinion, as it did during Watergate. And I fear that the judges on the right will follow not the law, but the need to support their party. Please surprise me, Justice Roberts.
I fear, however, that the court will not understand the need for a unanimous opinion, as it did during Watergate. And I fear that the judges on the right will follow not the law, but the need to support their party. Please surprise me, Justice Roberts.
39
What we know as men is colored by our convictions, our cradle-myths that we carry, like all other baggage, into our old age; and by other interests.
Linda argues that judges cannot be automatons but men and women with worldviews and judgments based on context and those worldviews; and up to a point that's not only a reasonable argument but an obvious observation.
But taken too far, it supports both chaos and judicial tyranny. For every jurist whose convictions and sense of propriety are offended by Trump and who insist on acting on those offenses, jurists can be found who don’t believe that women should have the right to some measure of control over their reproductive choices, that nonstandard gender identity is a mortal sin and that state legislative majorities should have the unquestioned power to restrict voting to favored classes. In other words, we invite chaos in the interpretation and enforcement of our laws by too broad a tolerance for “what we know as men”. And judge-shopping becomes an art form.
Trump acted in his capacity as president regarding the travel ban, employing powers that are traditional in a president. Some judges cast the bones and sought to divine his “motivations”, acting according to their divination and their personal convictions. And that is judicial tyranny.
We don’t save America by grasping at whatever judicial straw we can find to secure our personal ideological objectives. We destroy America by doing so.
Linda argues that judges cannot be automatons but men and women with worldviews and judgments based on context and those worldviews; and up to a point that's not only a reasonable argument but an obvious observation.
But taken too far, it supports both chaos and judicial tyranny. For every jurist whose convictions and sense of propriety are offended by Trump and who insist on acting on those offenses, jurists can be found who don’t believe that women should have the right to some measure of control over their reproductive choices, that nonstandard gender identity is a mortal sin and that state legislative majorities should have the unquestioned power to restrict voting to favored classes. In other words, we invite chaos in the interpretation and enforcement of our laws by too broad a tolerance for “what we know as men”. And judge-shopping becomes an art form.
Trump acted in his capacity as president regarding the travel ban, employing powers that are traditional in a president. Some judges cast the bones and sought to divine his “motivations”, acting according to their divination and their personal convictions. And that is judicial tyranny.
We don’t save America by grasping at whatever judicial straw we can find to secure our personal ideological objectives. We destroy America by doing so.
2
No. There is no grasping at straws here. Trump and his administration cast themselves as acting in an "UNPRECEDENTED" manner. Trump's words have given judges an "unprecedented" window into his intent. There is no casting of bones. We are not discussing rumors or hearsay. We are discussing Trump's own words as read by (literally) billions of people and reiterated on multiple occasions. The legitimate purpose of Presidential policies is presumed, but Trump squandered that presumption with his discriminatory posture. Even now, Trump inexplicably continues to contradict the assertions of his own legal team by showing that the oath of office has not changed Trump at all. There is no "new" Trump. Thus, facially neutral policies that might otherwise be beyond judicial review have become a subject of legal debate.
When liberals say words matter, it is not just for the sake of courtesy, propriety or other things conservatives, apparently, don't care about. Words also matter in (to paraphrase Monty Python) "a very real and legally relevant way" of determining the intent and motivations of people in power.
When liberals say words matter, it is not just for the sake of courtesy, propriety or other things conservatives, apparently, don't care about. Words also matter in (to paraphrase Monty Python) "a very real and legally relevant way" of determining the intent and motivations of people in power.
Justice Franfurter also was a champion of seeking meaning in ambiguous legislation by examining the whole nine yards of the process that led to the words on the page of law, including the intended meaning of words in the context they were used in. So also should courts examine the whole nine yards of the process by which an unprecedented executive order was executed. That naturally includes the intended meaning of words in this travel ban. What evidence of that intended meaning is better than out of the mouth of the signer of that Order. The most recent tweet by the nit-twit in the oval office is enough to establish that the executive order was a travel ban on muslims, period. The remaining task for the Court, should it take on the job, is to show the country why this ban is outside of the constitutional power of the Executive. Just as trying to create an American gulag at Guantanamo Bay provided Lesson 101 in Constitutional law in the Bush era, this Order should provide us with Lesson 101 in constitutional law in the reign of Trump the first.
3
Again - wittingly or just fortuitously - the framers of the Constitution of the United States of America establishing 3 separate and equal branches of government may save our country. If the executive and legislative branches collectively ignore or dismiss that Constitution, there remains the judicial branch as its last defender...
17
Justice Felix Frankfurter opined, correctly, I might add, that they, the judges, cannot pretend to be ignorant to what they know and see as common citizens, which all of us, no matter our professions, are.
While there may be many judges with such "common sense" spread across our judiciary, we'll need five on the SCOTUS with that kind of wisdom to successfully oppose POTUS on the travel ban issue. I do not have much faith in the newly elected Gorsuch, nor do I have much hope for Anthony Kennedy to be the fifth sane justice. Will it be CJ Roberts, who, after all, did cast the crucial fifth vote in helping salvage Obamacare many years ago?
While there may be many judges with such "common sense" spread across our judiciary, we'll need five on the SCOTUS with that kind of wisdom to successfully oppose POTUS on the travel ban issue. I do not have much faith in the newly elected Gorsuch, nor do I have much hope for Anthony Kennedy to be the fifth sane justice. Will it be CJ Roberts, who, after all, did cast the crucial fifth vote in helping salvage Obamacare many years ago?
Thank you for this excellent piece, Ms. Greenhouse.
I have but one objection. You write, "It’s hard not to feel empathy for Jeffrey B. Wall, a respected Washington lawyer now serving as acting solicitor general."
It is not. And, it should not be. Mr. Wall deserves no empathy.
Mr. Wall, an officer of the court sworn to uphold the laws and the Constitution, has chosen freely to work for a lawless, dangerous president.
If Mr. Wall had the courage and decency to do the right thing and resign, then I could feel empathy for his predicament. And, I would laud him for his action.
I have but one objection. You write, "It’s hard not to feel empathy for Jeffrey B. Wall, a respected Washington lawyer now serving as acting solicitor general."
It is not. And, it should not be. Mr. Wall deserves no empathy.
Mr. Wall, an officer of the court sworn to uphold the laws and the Constitution, has chosen freely to work for a lawless, dangerous president.
If Mr. Wall had the courage and decency to do the right thing and resign, then I could feel empathy for his predicament. And, I would laud him for his action.
113
Judges may "inhabit a world of nuance and constraint," but Trump inhabits a world of brutish indelicacy and intemperance. One world is populated by adults, solemnly mindful of their parental role and responsibilities. The other world is populated by a man-child, prone to whines and tantrums when denied the absolute authority and adoration he craves. Expectably, these worlds are colliding, and one can only hope that the adults hold sway and the toddler is sufficiently chastened and handed the limits and punishments he is due.
45
America should pay close attention to this matter. The Supreme Court may be the only entity which can save our country - from the Trump Cabul and its owners and backers and handlers. Our Republican controlled Congress appears to have no control over Trump and evidently does not WANT to control him. They care only about re-election and a lifetime congressional career. What has the Congress accomplished since the last election? Nothing of substance. Donald Trump is Twittering the nation toward dissolution and disappearance. These faux hearings and investigations will accomplish nothing - the GOP will prevent any damage to Trump......
7
I consider myself a rational person. As such, I've had a hard time wrapping my mind around the behavior of Donald Trump. I keep thinking that he's playing a role with us and that, someday, he will become a more assured and judicious president. He has finally convinced me that what we see every day is the real him - a self absorbed, ignorant, petty tyrant. He sees our system of government as an impediment to his will, rather than a sacred trust he has sworn to defend. Because our political system is fractured and unable or unwilling to rein him in, the courts have become our last line of defense. Nothing less than our basic constitutional rights hang in the balance.
69
Don't forget the 120 additional federal judicial vacancies McConnell stockpiled to fill with constructionist nihilists of separation of church and state.
With virtually every news story, opinion piece, and editorial I am drawn to the conclusion that any person who willingly to works for or supports The Donald is debasing themselves, permanently chipping away at their own integrity even their humanity. I feel sorry for those public servants who are compelled to execute inhumane policies in order to retain their jobs. I can only hope that someday, soon, they will survive to perform their duties with pride. As for the willing, time will be no kinder to them than they have been to their fellow women and men.
41
Agree, but i'm coming to view it as farther from disreputable and closer daily to sedition.
4
It is extremely ironic that Greenhouse should cite Justice Frankfurter.
Sure, he said "There comes a point where this court should not be ignorant as judges of what we know as men.”
But he also said, in Koretmatsu v. United States, the case upholding Japanese internment camps in America, in his concurring opinion:
"To find that the Constitution does not forbid the military measures now complained of does not carry with it approval of that which Congress and the Executive did. That is their business, not ours."
This is their business, not ours!
Taken together, the two quotes mean: what judges know as men is limited to what they do as judges, not as men.
Is this what Greenhouse wants: obsequious deference of our current supreme court justices to Donald Trump, Paul Ryan, and Mitch McConnell as men?
Of mice and men, I'd prefer judges who are men, rather than men who are judges.
Sure, he said "There comes a point where this court should not be ignorant as judges of what we know as men.”
But he also said, in Koretmatsu v. United States, the case upholding Japanese internment camps in America, in his concurring opinion:
"To find that the Constitution does not forbid the military measures now complained of does not carry with it approval of that which Congress and the Executive did. That is their business, not ours."
This is their business, not ours!
Taken together, the two quotes mean: what judges know as men is limited to what they do as judges, not as men.
Is this what Greenhouse wants: obsequious deference of our current supreme court justices to Donald Trump, Paul Ryan, and Mitch McConnell as men?
Of mice and men, I'd prefer judges who are men, rather than men who are judges.
6
What we know as men (and women) is that the president is unhinged and dangerous. And since congressional Republican jellyfish have shown time and again that self-preservation trumps the oath they took to put country first, it's going to be left to judges to keep the nut case-in-chief in check.
There's no doubt a partisan divides exists on the Supreme Court, but I have to think that even the most right-leaning of the justices find Trump offensive. He is the antithesis of the decorum and sober thought that SCOTUS exemplifies, not to mention a constitutional biohazard. And in spite of the seriousness and purpose they bring to the bench, the justices are human, after all. The Tiny Man's tweeting tirades against judges and his disregard for the constitution have surely left their mark.
Thurgood Marshall once said that sometimes history takes thing into its own hands. We can hope. We can also hope that the Roberts court sees that sometimes history needs a gentle push.
There's no doubt a partisan divides exists on the Supreme Court, but I have to think that even the most right-leaning of the justices find Trump offensive. He is the antithesis of the decorum and sober thought that SCOTUS exemplifies, not to mention a constitutional biohazard. And in spite of the seriousness and purpose they bring to the bench, the justices are human, after all. The Tiny Man's tweeting tirades against judges and his disregard for the constitution have surely left their mark.
Thurgood Marshall once said that sometimes history takes thing into its own hands. We can hope. We can also hope that the Roberts court sees that sometimes history needs a gentle push.
13
Excellent column.
Behind both the “enhanced” deportation policy and the mandated minimum sentences lies a very simple and specific governing principle: Make some people feel safe my making everyone afraid of their government. The more fear you can instill, the more order you’ll get. It’s the basic logic behind all dictatorships and Republicans seem to love it. In a democracy laws should be made to protect and help everyone, not just those in power.
Behind both the “enhanced” deportation policy and the mandated minimum sentences lies a very simple and specific governing principle: Make some people feel safe my making everyone afraid of their government. The more fear you can instill, the more order you’ll get. It’s the basic logic behind all dictatorships and Republicans seem to love it. In a democracy laws should be made to protect and help everyone, not just those in power.
31
We are fools to ignore the fact that it may be just my neighbor, yesterday, but today it may be me.
Trump adminstration is about unrestrained power, not the rule of law. This approach is being used throughout governmental departments and agencies to gut actions such as Obama and Clinton designations of national monuments..
President Tump's lack of knowledge or respect for the law should be on the mind of every federal judge.
President Tump's lack of knowledge or respect for the law should be on the mind of every federal judge.
7
So heartening to learn that checks & balances still have a chance to defeat the thugs who are undermining the values our country was built on. I hope the Sessions decision can be similarly examined as cruel & inhuman.
4
Thanks Linda. Trump is less a President than a Medieval baron stomping around his keep insulting those beyond its walls. In an autocracy nuance is unnecessary.
5
Why would any judge give Trump the benefit of the doubt on any issue? He hates our legal system and has zero compunction in attacking it publicly.
10
It's refreshing to read the words of Frankfurter, “where this court should not be ignorant as judges of what we know as men.”
I just hope when/if the Muslim travel ban case reaches the Supreme Court that those Judges heed the words of Judge Frankfuter.
Anyone with an "open mind" and listened to Trump's Muslim rhetoric both during the campaign and the last 4 months know full well that the travel ban was a religious ban.
I just hope when/if the Muslim travel ban case reaches the Supreme Court that those Judges heed the words of Judge Frankfuter.
Anyone with an "open mind" and listened to Trump's Muslim rhetoric both during the campaign and the last 4 months know full well that the travel ban was a religious ban.
2
“There comes a point,” Frankfurter wrote, “where this court should not be ignorant as judges of what we know as men.” There is nothing improper or even unusual about judges taking notice of what they know as individuals. The concept of judicial notice is enshrined in federal law in the Federal Rules of Evidence thusly:
Rule 201. Judicial Notice of Adjudicative Facts
(a) Scope. This rule governs judicial notice of an adjudicative fact only, not a legislative fact.
(b) Kinds of Facts That May Be Judicially Noticed. The court may judicially notice a fact that is not subject to reasonable dispute because it:
(1) is generally known within the trial court’s territorial jurisdiction; or
(2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.
(c) Taking Notice. The court:
(1) may take judicial notice on its own
The statements made by the President fit the definition of an evidentiary fact that can be considered by all judges, federal and state.
Rule 201. Judicial Notice of Adjudicative Facts
(a) Scope. This rule governs judicial notice of an adjudicative fact only, not a legislative fact.
(b) Kinds of Facts That May Be Judicially Noticed. The court may judicially notice a fact that is not subject to reasonable dispute because it:
(1) is generally known within the trial court’s territorial jurisdiction; or
(2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.
(c) Taking Notice. The court:
(1) may take judicial notice on its own
The statements made by the President fit the definition of an evidentiary fact that can be considered by all judges, federal and state.
9
Samuel Alito is a naif's naif.
What Justice Frankfurter gave us then and what we hope for today in the SCOTUS is trenchant thought.
It would be wonderful to see if Mr. Trump had any thoughts that were not self-laudatory and self-referential. More than anything else, he resembles most the Wicked Witch from Snow White as she intoned "Magic mirror on the wall! Who's the fairest of them all?"
It would be wonderful to see if Mr. Trump had any thoughts that were not self-laudatory and self-referential. More than anything else, he resembles most the Wicked Witch from Snow White as she intoned "Magic mirror on the wall! Who's the fairest of them all?"
9
I am very concerned with the way politicians are trying, and succeeding as in the case of demanding minimum sentences, to control the courts. We need the courts to be independent now more than ever to protect the people from the tyrrany and dictatorship of this administration
5
Trump's extreme narcissism leads him to believe that he is above the law; and is dangerous to our country and our democracy.
Protest and resist every day in every way!
Protest and resist every day in every way!
7
He'll soon be called Donald that Dope
Who hangs himself with his own Rope
With terrible tweeting
And logic that's fleeting
He slides down his Slippery Slope.
Who hangs himself with his own Rope
With terrible tweeting
And logic that's fleeting
He slides down his Slippery Slope.
18
"We need the courts to give us back our rights". In our system, it is the court that in the end determines the scope of those rights under statutes, the Constitution, or common law. The judiciary, sometimes called the least dangerous branch, lives on the respect shown to it. Trump's attacks on the judiciary are both disheartening and dangerous.
5
The government whose purpose is to protect its citizens in all their needs, and not only physical, is being transformed into a cut-throat business, where getting the upper hand is the goal. Under the guise of a mythical return to greatness, all humane considerations are being shunted aside, all compromises are being rejected in order to achieve god knows what. What more do we want of an individual if not a life-time of earnest, honest, law-abiding work? Is there a more stringent vetting than this? And when does the extreme application of a law become a thoughtless exercise in injustice?
18
"Who does President Trump mean by “us”? And what rights have the courts taken away? I’m wondering. And, I suspect, so are the judges. What we know as men. Women, too." Many of us share your wonder, Ms. Greenhouse. Many of us also share your concern that the Supreme Court considers the travel ban EO in its full and appropriate context that includes all of Trump's statements and the avowed purpose of the ban - to create a 90-day period during which "extreme vetting" procedures could be developed. This week's Congressional hearings disclosed that despite the stay of the ban's implementation the State Department did augment its procedures. DHS, for some reason, did not move as aggressively as it might have. Some suggest this deliberate delay is meant to "force the issue" at the court. Nonetheless, during this extended period of the stays of the first and second stays, we have suffered no harm from the ban's ostensible target populations. The court's apparent proclivity to rule narrowly rather than broadly is just that, a proclivity. In this instance, justice requires more.
4
Linda, Please write about the nominations that Trump has made for appointment to federal judgeships. That is where it gets really scary and it is already happening.
Hopefully, some civic minded Republican senators will find it on their moral compasses, and within their hearts, to keep from the bench those who would look at the law with such cold eyes so as to preclude constructive, compassionate interpretations of the progressive laws that govern us.
It's not just the Supreme Court. It's all layers of the federal judiciary.
Hopefully, some civic minded Republican senators will find it on their moral compasses, and within their hearts, to keep from the bench those who would look at the law with such cold eyes so as to preclude constructive, compassionate interpretations of the progressive laws that govern us.
It's not just the Supreme Court. It's all layers of the federal judiciary.
9
Thank you for this wonderful essay! How many innocent people have been killed or injured in the aftermath of Trump's words and actions? Should he not, as a "man," be held accountable?
10
Judges are there to interpret and apply the law. Legislators make law. This is the essence of our government, well designed. In this context, what judges know as men or women is irrelevant. If judges are able to craft their own "justice", they are not judges but judicial activists and social engineers. It seems, unfortunately, that's exactly what judges like RBG and Sotomayor believe.
“I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.”
What does that mean if not judicial activism? Ms. Sotomayor, now Justice, made another revealing comment in this context years ago.
From NYT: “… a video surfaced of Judge Sotomayor asserting in 2005 that a “court of appeals is where policy is made.” She then immediately adds: “And I know — I know this is on tape, and I should never say that because we don’t make law. I know. O.K. I know. I’m not promoting it. I’m not advocating it. I’m — you know.”
I am not picking on Sotomayor. She merely expresses the judicial activism view in such honest and unvarnished terms.
Is that what Ms. Greenhouse supports by this article?
And, since she asks, the rights that the courts are trying to take away are the rights of legislators to legislate, and the executive branch to execute. Their twisting themselves in to self-righteous pretzels by invoking motives, and ignoring plain written language, is taking rights away.
“I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.”
What does that mean if not judicial activism? Ms. Sotomayor, now Justice, made another revealing comment in this context years ago.
From NYT: “… a video surfaced of Judge Sotomayor asserting in 2005 that a “court of appeals is where policy is made.” She then immediately adds: “And I know — I know this is on tape, and I should never say that because we don’t make law. I know. O.K. I know. I’m not promoting it. I’m not advocating it. I’m — you know.”
I am not picking on Sotomayor. She merely expresses the judicial activism view in such honest and unvarnished terms.
Is that what Ms. Greenhouse supports by this article?
And, since she asks, the rights that the courts are trying to take away are the rights of legislators to legislate, and the executive branch to execute. Their twisting themselves in to self-righteous pretzels by invoking motives, and ignoring plain written language, is taking rights away.
4
As though being a hyper-privileged white male who was given the black robes of a Supreme Court justice by hyper-partisan politicians doesn't affect one's judicial decisions. How can who one is and what one has experienced not affect one's interpretation and application of the laws?
23
Justice Sotomayor was not wrong. Under the common law system, judicial opinions become law within the scope of that particular court's jurisdiction. The law of contract, tort, evidence are largely judge made. Brown v. Board of Education is a statement of policy -- that de jure segregated schools are wrong. Griswold v. Connecticut is a statement of policy -- that the government must respect the privacy of the marital bedroom.
9
Hmmm. I find it odd that you never mention the judicial activism of the late Justice Scalia or other conservative justices of the Supreme Court. Why not decry the judicial activism on display in the majority opinion of "Citizens United?"
Further, your understanding of the "rights" of the legislature to legislate and the executive to enforce the law omits all mention of the rights of the minority and marginalized as protected by the Bill of Rights.
As the Supreme Court and, presumably as a result of the current administration's appointments, the entire federal bench lurches to the right once again, you should be happy. Judicial activism will provide the result you desire. Why all the whining?
Further, your understanding of the "rights" of the legislature to legislate and the executive to enforce the law omits all mention of the rights of the minority and marginalized as protected by the Bill of Rights.
As the Supreme Court and, presumably as a result of the current administration's appointments, the entire federal bench lurches to the right once again, you should be happy. Judicial activism will provide the result you desire. Why all the whining?
Works both ways. What Trump knew as candidate Trump is what we now know as men: that a travel ban is increasingly necessary in today's dangerous world. That fact, together with affirming the President's power in matters of security, override any close parsing of Trump's casual utterings, past, present, or future, especially in biased, negative light.
Sadly, that's what Comey will be doing today, and what the press has been doing throughout: squeezing every drop of juice from his 140 characters and bombarding us poor souls with front page news, breaking news, memos, and talk-bouts at Senate. It's gotten so bad that Trump is now gaming his tweets with the press, hogging the news coverage, and ensuring Senators Shumer, Sanders, Warren, Harris & others get short thrift.
But coming to this ghastly ritual of the press splitting Trump's 140 characters, it is actually a gross interference in the president's right to free speech. After all, he's tweeting to followers only, that too on his time. And regularly getting down high horse, something Obama used to mostly climb imaginary moral high ground.
It's the man the press should know, but roundly ignores.
SCOTUS will neither interfere in Trump the man nor Trump the president. They'll look at whether or not the ban is primarily intended to enhance security or just a pretense to discriminate, and whether there's sufficient reason to believe it enhances security.
It's a no-brainer, the court will affirm the travel ban.
Sadly, that's what Comey will be doing today, and what the press has been doing throughout: squeezing every drop of juice from his 140 characters and bombarding us poor souls with front page news, breaking news, memos, and talk-bouts at Senate. It's gotten so bad that Trump is now gaming his tweets with the press, hogging the news coverage, and ensuring Senators Shumer, Sanders, Warren, Harris & others get short thrift.
But coming to this ghastly ritual of the press splitting Trump's 140 characters, it is actually a gross interference in the president's right to free speech. After all, he's tweeting to followers only, that too on his time. And regularly getting down high horse, something Obama used to mostly climb imaginary moral high ground.
It's the man the press should know, but roundly ignores.
SCOTUS will neither interfere in Trump the man nor Trump the president. They'll look at whether or not the ban is primarily intended to enhance security or just a pretense to discriminate, and whether there's sufficient reason to believe it enhances security.
It's a no-brainer, the court will affirm the travel ban.
3
So what do you do with the evidence that suggests that most terrorist acts are committed by citizens living in the countries they attack? Just curious. The President obviously has the right to free speech, as do we all, and--as are we all--must understand that his words mean something, else what would be the point? I also find it interesting that there is apparently nothing that can be done to protect workers, like those in Florida, from the rampage of a disgruntled employee who slaughtered five. I am all for safety, but knee-jerk reactions will not take the place of sound policy.
6
It is ludicrous to assert that the statements of *the person that wrote the policy* both before, during and after the event, does not have an impact on what the policy means and how it will be carried out. First, because federal rules regarding what a judge may know and use in their decisions allows it; and secondly because their is always explanatory material surrounding a policy enacted by any executive in any organization. If there weren't, no policy could ever be enforced - the employees couldn't know how to carry it out. And, equally ludicrous is a claim that somehow, the president's free speech rights are impinged by the attention the press is paying to the president's own tweets. Excuse me? What did we miss in class here? I think there's an abundance of free speech going on - the fact that the press is paying attention certainly hasn't seemed to stop the president from doing it! The only thing that seems to have worked to stop his tweeting was that his data plan apparently doesn't cover the European Union. That was a blessed week...
2
@Wanda, Steve
Trump's tweets are to his followers and they get it. They are not quoted as rationale behind policy, therefore they are exempt from judicial scrutiny. Simple as that. Efforts to parse and reparse his tweets with sole intention of casting them in bad light are attempts to muzzle the president from tweeting his mind. Not "pay attention" to them. If you/the press don't get it, stop following him and chase real news.
The good news is Trump treats it with all the scorn it deserves, more power to him. Doesn't matter who's twisting his tweet, in which court, this president says phooey to all that, keeps tweeting his mind, every tweet adoringly received by his followers with cheers of admiration.
At the very least, we have a president who's a living, breathing, leading role model in the exercise of constitutional free speech. What's more, he does it unashamedly and enjoys every tweet of it. No need for Berkeley or Auburn, no demanding extra characters or better spell checkers, just unadulterated thinking out loud and communicating with the masses. Simply awesome!!!! Huuuge man!!
As for your "evidence", you forget to mention that these citizens were beneficiaries of lax travel policies of the past. So much for that.
Florida, hmmm. I'll get to that when I'm invited to replace Charles Blow. Don't hold your breath.
Trump's tweets are to his followers and they get it. They are not quoted as rationale behind policy, therefore they are exempt from judicial scrutiny. Simple as that. Efforts to parse and reparse his tweets with sole intention of casting them in bad light are attempts to muzzle the president from tweeting his mind. Not "pay attention" to them. If you/the press don't get it, stop following him and chase real news.
The good news is Trump treats it with all the scorn it deserves, more power to him. Doesn't matter who's twisting his tweet, in which court, this president says phooey to all that, keeps tweeting his mind, every tweet adoringly received by his followers with cheers of admiration.
At the very least, we have a president who's a living, breathing, leading role model in the exercise of constitutional free speech. What's more, he does it unashamedly and enjoys every tweet of it. No need for Berkeley or Auburn, no demanding extra characters or better spell checkers, just unadulterated thinking out loud and communicating with the masses. Simply awesome!!!! Huuuge man!!
As for your "evidence", you forget to mention that these citizens were beneficiaries of lax travel policies of the past. So much for that.
Florida, hmmm. I'll get to that when I'm invited to replace Charles Blow. Don't hold your breath.
1
This is why the judiciary is so much more respected than the executive or legislative branches. And at the end of the day, judges know what their role is: to protect the individual against the awesome power of the state.
Where the courts are strong, a nation’s freedom is protected. The problem at present is that someone who believes courts should work for the executive now has the power to appoint the judges for many years to come. Ironically, we must now put our faith in the senate to filter the nominations and protect the judiciary. A thin reed indeed.
Where the courts are strong, a nation’s freedom is protected. The problem at present is that someone who believes courts should work for the executive now has the power to appoint the judges for many years to come. Ironically, we must now put our faith in the senate to filter the nominations and protect the judiciary. A thin reed indeed.
33
The judges are correct to be concerned, as ' fragile ' law is built on reality and facts, which djt and his cohorts seem bent on denying/obuscating by choosing 'alternative facts', so that 'what we know' is in doubt - a la, who ya gonna believe, me, or your lyin' eyes ?
Fortunately, due to the truly epic egotism/entitlement of djt, the Great Himself has provided the judiciary a plethora of position statements via djt's Twitter account, with even the White House press secretary making absolutey clear such tweets should be considered official White House releases.
Truly inconvenient for people accustomed to spinning 'alternative facts' as needed for each situation.
Fortunately, due to the truly epic egotism/entitlement of djt, the Great Himself has provided the judiciary a plethora of position statements via djt's Twitter account, with even the White House press secretary making absolutey clear such tweets should be considered official White House releases.
Truly inconvenient for people accustomed to spinning 'alternative facts' as needed for each situation.
42
We all can hope Linda's concept of the proper interpretation of the law is shared by our judges. To do more than hope, Congress has to be forced to enact laws that enable such judgments.
3
By all means: let's substitute "Linda's concept of the proper interpretation of the law" for law. How about Mary's concept? Joe's concept?
1
Frankfurter was expressing that there are certain things that are unquestioned - in that case, that there is torture of the mind as well as body - and judges should not ignore it b/c it was not part of the record. But there must be a limit or we will no longer have a rule of law. These must either be neutral accepted facts taken by judicial notice (e.g., times of sunrise/set) or general neutral truths - not case specific facts or reading of the minds of men. This is different than what I think Ms. Greenhouse is implying (she's not clear). I think she means that judges should import what they know or think they know about Trump factually, into their rulings.
That way leads an unraveling of the rule of law. Trump may be unsuitable for his office, but he is still the president. If he is treated differently than other presidents judicially, we do not have a democratic republic, but are ruled by ephors or a mob.
Whether Trump's meant "us" the executive or "us" the citizenry, I can't say. But, it is frightening that the 9th circ., picked for its willingness to make progressive rulings (usually overruled), have accepted that a presidential order by Trump should be treated with less respect than would an identical one by Obama. That does impinge Trump's executive rights and undermines the Democratic process too. Whatever you or I think of him, he is the president. However much he is wrong, he is right about that whoever he meant.
That way leads an unraveling of the rule of law. Trump may be unsuitable for his office, but he is still the president. If he is treated differently than other presidents judicially, we do not have a democratic republic, but are ruled by ephors or a mob.
Whether Trump's meant "us" the executive or "us" the citizenry, I can't say. But, it is frightening that the 9th circ., picked for its willingness to make progressive rulings (usually overruled), have accepted that a presidential order by Trump should be treated with less respect than would an identical one by Obama. That does impinge Trump's executive rights and undermines the Democratic process too. Whatever you or I think of him, he is the president. However much he is wrong, he is right about that whoever he meant.
2
Context, is always important and does require interpretation. For this we rely on the sound judgement of the judiciary....
8
Perhaps I misunderstood the travel ban. It was suppose to be for 90 days? It has been 90 days since the ban was introduced. I would think this Administration has had sufficient time (90 days) to do whatever it had planned during that time.
93
This is not about the ban anymore. It is about the powers of the executive vs. judicial branches.
3
Indeed; Trump declared the other day that "we are EXTREME VETTING people" - i.e. the thing that the 90 days was supposed to set up.
Now it's just about getting "our" royal-we rights back, and nothing to do with the original pretext for the non-ban ban.
Now it's just about getting "our" royal-we rights back, and nothing to do with the original pretext for the non-ban ban.
3
Agreed! If they had spent the time doing what they said they were supposed to do (come up with more extreme vetting?), instead of putting up more false arguments, we would be done with the issue. I think they wanted the ban just so that they could keep extending it and do nothing.
4
Thank goodness that "judges inhabit a world of nuance and constraint where every word carries weight and wiping the slate clean of the past is almost never an option." What a stark contrast with Trump's brass tweets! Judicial restraint makes progress slow, of course, but it also helps prevent serious regression. If the judges themselves remain "smart, vigilant and tough" (to turn Trump's words around on him), he will be but an historical blip, an aberration in the evolution of democracy.
14
Are lawyers statements subject to perjury charges? You cite Wall, “Taking that oath marks a profound transition from private life to the nation’s highest public office and manifests the singular responsibility and independent authority to protect the welfare of the nation that the Constitution reposes in the president.”
That is a false statement. This president has made no such transition.
That is a false statement. This president has made no such transition.
33
Our image of justice assumes the form of a blindfolded lady holding a pair of scales, on which only unbiased evidence determines the balance that ensures an equitable decision. Ms. Greenhouse's column reminds us, however, that this legalistic approach, although vastly superior to the distorted judicial procedures that not infrequently corrupt verdicts even in our courts, does not always deliver justice. Both President Trump's travel ban, which judges people based on their religion and country of origin, and the deportation of Mr. Magana, which ignores the evidence embodied in the man's life, may conform to the law. Neither, however, satisfy the standard of equal justice before the law.
The immigration law and the executive order stem from a concern for national security, a need to protect our borders against outside threats. Mr. Magana represents a a danger to no one, and the vast majority of visitors and immigrants from the Middle East have never committed any crimes.
We pride ourselves on being a nation of laws, not of men. But men and women make those laws, and unless they infuse them with a sense of humanity, we cannot create a just society. Statutes which define people as a threat, not because of their behavior but due to their religion or country of origin, defy our legal concept of innocent until proven guilty. Such measures may be legal, but no one should call them just.
The immigration law and the executive order stem from a concern for national security, a need to protect our borders against outside threats. Mr. Magana represents a a danger to no one, and the vast majority of visitors and immigrants from the Middle East have never committed any crimes.
We pride ourselves on being a nation of laws, not of men. But men and women make those laws, and unless they infuse them with a sense of humanity, we cannot create a just society. Statutes which define people as a threat, not because of their behavior but due to their religion or country of origin, defy our legal concept of innocent until proven guilty. Such measures may be legal, but no one should call them just.
96
The fastest way to autocracy is to undermine the courts. Get judges who will summarily rule and rubber stamp, and the rule of law is undone. L'etat, c'est moi becomes real.
I don't know if Trump sees himself as an autocrat. He sees himself as in charge, a CEO, the top dog/. He gets to tell the legal department what is what. CEO skills and political skills are not a close match.
Even when the Court has been at its most partisan - think Citizens United and Bush v Gore - the Justices have worked at looking independent. Usually they are independent, they just have a philosophy that may or may not support the politics of the day.
Trump wants rubber stamps. He does not understand why "Muslim Ban" or "Travel ban" carries the kind of weight that could get the rule bounced out of court. He doesn't want to play by the rules, and doesn't want to hear that those riles are not arbitrary, they are written into our Constitution. Most President;s try to get around the Constitution. Trump wants to rip right through.
It will be interesting to see if the Justices consider the bigger picture of Trump - that of someone who regards law as an impediment - or the details of the case.
I don't know if Trump sees himself as an autocrat. He sees himself as in charge, a CEO, the top dog/. He gets to tell the legal department what is what. CEO skills and political skills are not a close match.
Even when the Court has been at its most partisan - think Citizens United and Bush v Gore - the Justices have worked at looking independent. Usually they are independent, they just have a philosophy that may or may not support the politics of the day.
Trump wants rubber stamps. He does not understand why "Muslim Ban" or "Travel ban" carries the kind of weight that could get the rule bounced out of court. He doesn't want to play by the rules, and doesn't want to hear that those riles are not arbitrary, they are written into our Constitution. Most President;s try to get around the Constitution. Trump wants to rip right through.
It will be interesting to see if the Justices consider the bigger picture of Trump - that of someone who regards law as an impediment - or the details of the case.
131
Thank you for the Frankfurter quote, which I'll be saving. I've been wondering recently how the Supreme Court can even begin to deal with the erratic pronouncements of the President, both executive orders and tweets. Perhaps the more prudent approach would be to decline his appeals, rather than normalize his bizarre and destructive rants.
21
Justice purports to be blind, yet as you remind us through Frankfurter, it requires that what we know as humans must also be considered. And what we know, for justice to occur, has to reflect the specifics of situation and circumstance. That is why anyone's sweeping generalizations must be critically assessed. This includes all the "ism" declarations that is racism, sexism, elitism, populism as well as those about all immigrants, Muslims, Christians and religious people. These generalizations have to tested in the crucible of the situation, event and the interplay of human engagement. All politics, all justice, all freedom is in the end local. Thank you Tip O'Neal.
10
You wonder, though, what the real right-wingers on the Court will do. Sometimes it's about what we know as men. Sometimes, its about what we are prepared to pretend we know as partisans.
201
I am not hopeful on this.
2
I have wondered myself what the Supreme Court thinks of Trump. Surely they or their families watch the news and read the newspapers. This isn't decent or normal, and it doesn't have a happy ending. I wouldn't want my name on that. I wonder how many of them do?
100
the five republicans think it's fine.
I have wondered why Gorsuch was willing to accepts a tainted nomination, and what the rest of the SCOTUS privately thinks and feels about that "miscarriage of justice" - so to speak.
That obvious political manipulation of our legal system reflects badly on the branch of our government that indulged in that behavior, and that continues to apply different standards of ethical behavior according to political whim...
That obvious political manipulation of our legal system reflects badly on the branch of our government that indulged in that behavior, and that continues to apply different standards of ethical behavior according to political whim...
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Your op-ed pieces are always a real education. Each one offers an insight and a package of information that I've not come across before. Thank you for the Frankfurter statement -- a gem.
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But you will note, Ms. Greenhouse did not offer up her legal views on the Constitutionality of the travel ban!
What is happening here is that the Court is being asked to adopt a novel approach instead of considering the face value of the proposal, but in evaluating things like a President's Tweets to determine intent.
Not so fast... There is a reason we don't encourage this. If we did, we'd need more "diversity" of men -- and women -- on the courts. Let's stick with closely and carefully analyzing the words the attorneys have drafted as written, and leave out our empathetic feelings as men and women about who will be affected, who needs to be protected, and why unelected judges should be setting or dismantling policies that affect the safety and security of so many of the rest of us who have to live under their concept of rule of law without the security protections or expensive lifestyles that well meaning but unnacountable judges can afford.
What is happening here is that the Court is being asked to adopt a novel approach instead of considering the face value of the proposal, but in evaluating things like a President's Tweets to determine intent.
Not so fast... There is a reason we don't encourage this. If we did, we'd need more "diversity" of men -- and women -- on the courts. Let's stick with closely and carefully analyzing the words the attorneys have drafted as written, and leave out our empathetic feelings as men and women about who will be affected, who needs to be protected, and why unelected judges should be setting or dismantling policies that affect the safety and security of so many of the rest of us who have to live under their concept of rule of law without the security protections or expensive lifestyles that well meaning but unnacountable judges can afford.
Interpretation of the words of a statute or order drafted with care by attorneys has its limitations, and sometimes relying on the words and the words alone without the context ignores the true purpose of the statute or order. Midway would have the courts ignore the political and social context (racism) of "grandfather clauses" in voting rights acts passed by former secessionist states as well as the effect of those provisions (provide for illiterate White voting while denying Black voting rights), which were clearly unconstitutional.
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I envision a day when Americans traveling abroad will not be able to return to the United States due to some infraction in their past. Information is being misused and abused.
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Didn't that already happen with Cassius Clay ( sorry : Muhammad Ali ) his son ?
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Wouldn't that be rich?
Another brilliant analysis by the very talented Ms. Greenhouse. Thank you for bringing attention to Justice Frankfurter's astute observation that also escaped me during law school. Felix rocks!
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He should have applied the principle in Korematsu, where he voted with the majority sustaining the President.
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Andrew: Thank you of reminding Ms. Greenhouse of this, perhaps she should have included it in her article ... for balance.
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One doesn't always need balance, with the other side of the coin is abjectly wrong.