Over a century ago, Justice Oliver Wendell Holmes, Jr. lamented that “hard cases make bad law.” Such decisions, he noted in his Northern Securities dissent, “are called great, not by reason of their importance in shaping the law of the future, but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment.” During his brief, tumultuous, and deleterious time in office, President Trump has embodied this maxim. In case after case, he has taken actions that would have been upheld if taken by any other president. And, in case after case, the judiciary has hurdled over countless prudential and jurisprudential barriers to halt a president they see as an existential threat to the rule of law. There is a significant cost to these confrontations, far beyond the issues du jour: in response to a bad president, the courts are making bad law. Over the past seven months, the purpose of my many writings has been not to defend the administration’s policies—indeed, I disagree with nearly all of them—but instead to highlight the dangers in creating certain Trump-specific precedents.
The leading example of this dynamic has been the litigation concerning the travel ban. Here, the courts have made an absolute hash of long-settled doctrine. For the first time ever, the judiciary has applied domestic Establishment Clause case law to foreign policy decisions. The courts have found standing for aliens abroad who have zero connection to the United States. Judges have cited statements made on the campaign trail, before the inauguration, to establish animus in the context of foreign affairs. Remarkably, courts have deferred to the national security determinations of former government officials—the so-called “shadow cabinet”—and rejected the views of current government officials. The list goes on.
Alas, I do not see this trend reversing. To the contrary, the President’s never-ending stream of self-defeating behavior invites—some may say compels—courts to over-compensate in other areas of the law, thus creating even worse precedents. This spiral goes only downward.
In particular, I fear that recent events in Charlottesville, and the President’s ignominious response, could give courts pause to reconsider well-settled First Amendment doctrine. As I noted yesterday, the federal district court correctly ruled that the white nationalists should be permitted to rally near the Robert E. Lee statue in Charlottesville. The city’s evidence that the crowd would be much larger than expected—based on social media posts—was not concrete enough to satisfy the rigors of the First Amendment. Strict scrutiny was strict in theory, and, tragically here, fatal in fact. In hindsight, that judgment looks horribly flawed, but that is what the doctrine compelled. Like confederate monuments, however, doctrine is not set in stone.
Judges in the future, with the Battle of Charlottesville fresh in their minds, may attempt to soften strict scrutiny for restrictions on speech. Lest we forget that several of our leading First Amendment cases arose specifically because of the speech of white supremacists, such as Brandenburg v. Ohio and National Socialist Party of America v. Village of Skokie. But here, the President could tip the balance. Trump’s shameful attempt to draw a false-equivalency between both “sides” of the protest can only signal to the courts that such hateful movements are on the ascendancy, and doctrine may need to be recalibrated. For some time, I’ve warned about a paradigm shift with respect to the collectivization of free speech. I hope we are not at a tipping point. Indeed, a test case may come sooner rather than later. The Universities of Florida and Texas A&M recently cancelled permits for demonstration by white nationalists. (See Dale Carpenter’s timely analysis on the latter situation).
Such a change in law, which may seem compelled by Trump’s, would be deeply, and profoundly regrettable. Once constitutional liberties are abandoned, they are seldom restored. I sincerely hope the courts do not take this path.
During this administration’s blitz, the world seems to move at light speed, as we are drawn into Trump’s impetuous vortex. It is virtually impossible now to assess the long-term consequences of the moment to our polity. Eventually, the forty-sixth presidency will draw to a close. For decades to come, presidential historians will grapple to understand the scope of Trump’s self-inflicted institutional damages to the office he holds. But when the history is written, there will be other chapters to write. In response to Trump’s actions, the federal judiciary has self-inflicted its own institutional damage, a type that significantly differs in both degree and kind, but one that will warrant careful study.