Jurisprudence

The Solution to the Trump Judge Problem Nobody Wants to Talk About

Two women in face paint wearing "Team Trump" hats.
Trump rallygoers, or members of the judiciary? It’s hard to say. Spencer Platt/Getty Images

Legal analysts lit up social media on Monday in response to the broad and potentially devastating order by Judge Aileen M. Cannon, a Donald Trump appointee to the Southern District of Florida, temporarily halting the criminal investigation of the former president and his alleged pilfering of classified documents. Her order further authorized a special master to identify and return the small fraction of materials seized in last month’s court-approved search of Trump’s Mar-a-Lago residence that may belong to him. One analyst after another meticulously detailed the failings of Cannon’s reasoning: It was “untethered to the law,” “a political conclusion in search of a legal rationale,” “deeply problematic,” “laughably bad.” At some point, one truly runs out of euphemisms for lawless partisan hackery.

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It’s possible to agree with every one of these criticisms but still find them less than satisfying. Because at the end of the day, no matter how much withering criticism she faces, Cannon still gets to put on the black robe and run interference for her benefactor. She will still get a standing ovation at some future Federalist Society gathering. She remains in control of this case. But it’s not just Cannon: Many smart lawyers also noted that the Justice Department now faces the unenviable task of having to appeal this decision up to higher courts that are filled with Trump appointees, which takes the sting out of the opprobrium: For all we know, the Trump-stacked 11th U.S. Circuit Court of Appeals or five radical justices on the Supreme Court may also greet her outrageous decision with a standing ovation.

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So the problem is not just the extreme and heinous flaws in Cannon’s ruling. It’s also the Trump-shaped world in which Cannon operates, with impunity, which we will all have to endure for the foreseeable future. It’s the brutal reality that we may face a steady stream of depraved decisions like Cannon’s for the rest of our lives—and the pain of hearing from every quarter that nothing can be done to remedy it.

We watched the same pattern play out at the end of this last Supreme Court term. One case after another blew up decades of existing precedent and tests and doctrine and replaced them with Rorschach exams that transformed contemporary Republican policies into constitutional law. Smart lawyers dutifully digested these opinions and set to work figuring out just how the EPA, or public school districts, or state legislatures that want to stop mass shootings can plausibly work around these new tests. And of course, were we living in a rational regime in which the rule of law governed, that would make perfect sense. But if the last term at the Supreme Court and indeed Cannon’s baffling new order mean anything, they signify that in this new age of legal Calvinball, one side invents new “rules” and then the other scrambles to try to play by them. For every single legal thinker who read the Mar-a-Lago order to mean, quite correctly, that ex-presidents are above the law, furrowing your brow and pointing out its grievous errors only takes you halfway there. The better question is what, if anything, do you propose to do about it? The furrowing is cathartic, but it’s also not a plan.

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If there were a principle that best embodies why progressives are losing ground so quickly—even as they are correct on the facts, and the law, and the zeitgeist—it must be this tendency to just keep on lawyering the other side’s bad law in the hopes that the lawyering itself will make all the bad faith and crooked law go away. But for those who are genuinely worried that democracy will rise or fall based on whether a case lands before their judges or others, merely explaining legal flaws in pointillist detail isn’t an answer. And soberly explaining that Cannon was wrong about most stuff but correct about two things is decidedly not an answer, either. You do not, under any circumstances, have to hand it to them.

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It is not a stand-alone answer to point out that Cannon was a Trump pick—a member of the extremely not-neutral Federalist Society, seated after Trump lost the election—or that the former president’s lawyers forum-shopped in order to get this case in front of her. It also doesn’t help to note that Cannon herself acknowledged the proper venue to adjudicate the executive privilege claims made in this case (which are on their face absurd) is in fact in a different court in D.C., where Cannon has no jurisdiction and where Trump did not make his case. Nor is it an answer to note that federal judges have literally no constitutional authority to stop an ongoing criminal investigation in its tracks, as Cannon purported to do, rendering her decision an imperious assault on the separation of powers. That, too, is an accurate description of the problem. Stating that, too, is not a solution.

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Until and unless those of us who are shocked and horrified at lawless rulings by lawless Trump judges are prepared to propose structural solutions, the aggregated effect of criticizing their rulings won’t be to restore the rule of law or even to restore public confidence in the rule of law. The aggregated effect will be just to confirm that we will all be living under the thumb of Donald Trump’s lifetime-appointed hacks for many decades.

There are solutions out there for the problem of Trump’s runaway judges. Expanding the courts—even just the lower courts—is the most bulletproof. Congress has periodically added seats to the federal judiciary from its inception to help judges keep up with ever-ballooning caseloads. Today’s litigants (who are not named Donald Trump) often face yearslong court delays. The Judicial Conference, a nonpartisan government institution that develops administrative policies, has begged Congress to add seats to the lower courts. Some Republicans have supported the idea in recognition of the crisis facing our understaffed judiciary. Letting Joe Biden balance out far-right courts like the 11th U.S. Circuit Court of Appeals—which will weigh Cannon’s ruling if the government appeals—would go a long way to tame the jurisprudence of Trumpism. When district court judges know their radical decisions will be overturned on appeal, they may be less likely to swing for the fences in the first place.

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There are other worthy ideas too. Term limits for justices and lower court judges. Limits on courts’ jurisdiction to strike down democratically enacted laws. Modest reforms that restrict the Supreme Court’s ability to suppress voting rights before an election. Let’s hear them all. (God knows Biden’s court reform commission studied them extensively, to little end.)

But the chorus from the left, the middle, and the sane right that the lawlessness is lawless only affirms that we cannot ever escape this closed loop of Trump’s judges. Being really mad but doing nothing to change things is a terrible strategy for democracy and for public confidence in the courts. It creates the illusion that if we work really hard to debunk corrupt rulings, we can force Trump judges to see the light, or feel shame, or do something different. Meanwhile, the targets of our meticulous takedowns laugh at the pains we take to prove them wrong. They. Do. Not. Care.

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We get it. Lawyers are trained to lawyer. But if you are lawyering within a system you believe to be broken, or immoral, or lawless, and you aren’t standing up with meaningful fixes for that system, you are, fundamentally, acceding to that lawlessness. It is a moral victory to point out the errors, but it’s also a tacit concession that the system is, in fact, legitimate, no matter how low it may go. Every one of us is going to need to decide how long we can continue to operate that way.

There are too many things wrong with the Cannon order to litigate. And there are too many things wrong with Trump’s judicial dominion of every part of our lives— for years to come—to litigate. So maybe it’s time to stop litigating them and start fixing them.

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