An Opinion on the Opinion

It’s apparently a great temptation to the opposition to view the 9th Circuit ruling on the immigration EO as a great victory, a sign that everything is going to be normal: a judge blocked an order, the block was challenged, it’s moving up the courts, and eventually the Supremes will rule, all as one would expect.  In fact last night, in a piece then headlined “Rule of Law: 1, Trump: 0”, the Daily Beast made this very argument, while breaking the ruling down into the White House’s four major arguments, which were as follows:

  1. National security trumps judicial review (it doesn’t).
  2. We don’t need no stinkin’ evidence (they do).
  3. Aliens have no due process rights (depends on the alien).
  4. Washington lacks standing (they don’t).

The Daily Beast correspondent finds reassurance in the ruling’s unassuming, regrettably un-Scalia-ish affirmation of the separation of powers.  We are supposed, he says, to be cheered by the mildness and boring reasonableness of the court’s opinion.

No.

That’s backwards.

Even the authoritarian crank John Yoo.

What has actually happened is that il Presidente has for the last two weeks kept up a sustained attack on the very notion of judicial review and on the ideal of an independent court. The White House’s case here was “We do what we want.” We will not know the full extent of their determination to do what they want until SCOTUS has ruled. The Breitbartian commentariat has been busily producing justifications for the Jacksonian you-and-whose-army option, but even if the White House doesn’t take this nuclear, we should find the content of their argument alarming of itself. In better times a court would be handing down a ruling on the substance of a law or an EO, not on the once-established fact of separation of powers or judicial review. Not rolling over is the least we could expect from the 9th Circuit, and they should at least have tried to out-Scalia Scalia.

Furthermore, the regime (can I call it a regime yet?) is likely to succeed in framing the ruling as entirely political, even though the court very conspicuously declined to address the question of a Muslim ban and the implied religious tests. Of course, this has little to do with either the content of the court order or public opinion: the regime clearly does not believe in the ideal of an independent judiciary, as is evident from the immediate insistence than any legal pushback was either partisan or outright disloyal. Only sad wonks like you, dear reader, look at these things anyway, so it will probably be enough to politicize any rulings retroactively by sending out the clowns to loudly announce that the rulings were political. The climate of division is such that the press and the public will do the rest of the work themselves. The cumulative effect of this debate will play nicely into his tiny, tiny hands: support for judicial review may, in the next months, become a partisan matter.

Lastly, there has been a troubling attempt to push the courts over into the public enemy category along with the press. The White House has insisted repeatedly both on Twitter and at press conferences that they will consider the courts responsible for terrorist attacks, for instance:

It remains unclear whether the equation of the institutional dissent with malicious disloyalty to our glorious leader and, by Louis Quatorzish extension, the republic is meant as a matter of calculated policy or if it’s simply a necessary consequence of the way his mind works. It makes little practical difference. Even if he himself is not smart enough to do it on purpose, Steve Bannon is certainly smart enough to put it to use.

If he does decide to try the nuclear option, we the people are left to the tender mercies of the bureaucrats and to whatever we can accomplish with demonstrations and other forms of targeted Congress-bothering.  This isn’t over.

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