Judges Nationwide Are Fed Up With Trump

Among the onslaught of judicial rulings issued by courts in response to the Trump administration’s attempts to expand the president’s powers, a singular theme is emerging: Judges are pissed off.

Encapsulating that ire most succinctly of late was Justice Kentanji Brown Jackson at the Supreme Court. In a scorching dissent to the conservative majority’s approval of the Trump administration’s enforcement of draconian passport restrictions for transgender people on Nov. 6, the justice called out the greater pattern of abuse of law that all Americans — including those sitting beside her on the highest court in the land — are witnessing.

“Such senseless sidestepping of the obvious equitable outcome has become an unfortunate pattern. So, too, has my own refusal to look the other way when basic principles are selectively discarded,” she wrote. “This Court has once again paved the way for the immediate infliction of injury without adequate (or, really, any) justification. Because I cannot acquiesce to this pointless but painful perversion of our equitable discretion, I respectfully dissent.”

Even the formal legal language can’t hide the pointed anger and frustration in her opinion. And she is not the only one.

Whether on the page or from the bench, judges nationwide — including those President Donald Trump appointed — are expressing increased exasperation with the administration’s obfuscations and seeming reliance on plausible deniability as a primary or sole legal strategy.

In a case about the administration’s attempt to force states to comply with immigration law enforcement efforts in order to receive emergency disaster aid, U.S. District Judge William Smith in Rhode Island, a George W. Bush appointee, showed no interest in softening the blows as he ruled against the president.

“It is a ham-handed attempt to bully the states into making promises they have no obligation to make,” Smith wrote of the administration’s claims.

Judges speak through their rulings. Mostly cordoned off from the world of punditry and analysis more prevalent online and on television, their rulings are the space where they can express themselves.

But the aim is not simply to blow off steam. Rather, there is a pointed purpose to the increasingly spicy rulings and dissents coming from across the judiciary.

Paul Kiesel, a Los Angeles-based trial attorney and co-founder of Speak Up For Justice, told HuffPost that judges speaking out plainly aren’t spinning their wheels for the hell of it or because they want to infuse their rulings with their personal opinions and considerations.

“They are trying to put the balance back into our justice system,” Kiesel said.

Whether it’s litigation on constitutional powers, immigration or civil rights, a review of dozens of judicial opinions from the nation’s courts high and low by HuffPost confirms: While deference to the separation of powers consistently guides the courts, judges are highly aware that their authority dances on the edge of a knife.

While the judiciary is meant to be the umpires of government, one of the biggest flaws coming to light in the second Trump era is that the judiciary has limited means of enforcing its rulings against a truculent executive branch, which is normally charged with executing the court’s decisions.

At times, that difficulty has played out in appallingly blatant ways.

On Sept. 30, U.S. District Judge Bill Young, a Reagan appointee, kicked off his opinion regarding the Trump administration’s targeting of pro-Palestinian rights student activists by attaching an anonymous handwritten postcard his chambers received as the litigation played out.

“Trump has pardons and tanks. What do you have?” the postcard stated.

“Dear Mr. or Ms. Anonymous, alone, I have nothing but my sense of duty,” Young began his opinion, which ruled decisively that the administration had likely violated the First Amendment.. “Together, We the People of the United States — you and me — have our magnificent Constitution. Here’s how that works out in a specific case—”

Young then seared into the administration for its intimidation tactics and their “full-throated assault on the First Amendment across the board under the cover of an unconstitutionally broad definition of Anti-Semitism.” The 161-page ruling was, from its first page, written to draw attention to the monumentally foundational principles that the administration had put in jeopardy.

“The president’s palpable misunderstanding that the government simply cannot seek retribution for speech he disdains poses a great threat to Americans’ freedom of speech,” Young wrote.

The regularity with which lower court decisions go against the administration has turbocharged the problem. According to analysis by Court Accountability, an advocacy group that investigates corruption in the nation’s courts, as of January, Trump has won just 40% of all cases unfolding in lower federal courts, compared to a 90% win rate at the conservative-stacked Supreme Court.

At the circuit court level, challengers to the Trump administration have a 59% win rate, with Republican-appointed circuit judges giving their votes to Trump 85% of the time and Democratic-appointed circuit judges voting against Trump 85% of the time. At the district court level, Trump’s challengers have won 60% of the cases brought, with Republican-appointed district judges ruling against Trump 55% of the time and Democratic-appointed judges ruling against the administration 63% of the time.

What this data tells America, according to Court Accountability’s senior adviser Mike Sacks, is that the lower courts are hewing closer to the rule of law than the highest court in the land, which, for years, has drawn the public’s attention over its high-profile issues.

But as the Roberts Supreme Court continues to “regularly delegitimize itself with unreasonable orders and its overwhelming greenlights for this Trump administration,” Sacks said something unique and potentially revolutionary is happening in real time.

“Right now, we have more important work for posterity being done in the lower two levels of the judicial pyramid,” he noted. “They are memorializing a vision of this country that if we the people stand up for and follow what they’re saying, that will be what guides us in the future.”

In several cases, judges have made a point of highlighting the exact rules and norms being violated, but with impassioned language that also gives weight to the life-and-death stakes at hand.

Judge Paula Xinis, who was appointed by former President Barack Obama, in April castigated Justice Department lawyers for ignoring her orders in the deportation case of Kilmar Abrego Garcia, the Maryland man who was wrongly deported and imprisoned. The government had refused to provide insights on what steps they took to deport him and instead, she wrote, seemed to rely purely on its desire to seek “refuge behind vague and unsubstantiated assertions of privilege, using them as a shield to obstruct discovery and evade compliance with this Court’s orders.”

While overseeing litigation involving anti-torture laws and immigrants in September, U.S. District Judge Tanya Chutkan, an Obama appointee, was pointed in her takedown of the administration’s loading up of men onto a military cargo plane headed for West Africa.

The conduct was undertaken “in disregard of or despite its obligations to provide individuals present in the United States with due process and to treat even those who are subject to removal humanely” and was “part of a pattern and widespread effort to evade the government’s legal obligations by doing indirectly what it cannot do directly.”

“These are not speculative concerns, and this case is not an outlier; it is not the first case in which plaintiffs allege that the government has deported or attempted to deport them with no notice or opportunity to contact family or counsel,” Chutkan wrote.

And when U.S. District Judge Mary McElroy in Rhode Island blocked Trump’s bid to require proof of legal immigration status for migrant children to access social services like Head Start programs, she invoked a slogan popular among Nazis and in police states the world over.

McElroy, a Trump appointee, wrote: “The government’s new policy, across the board, seems to be this: ‘Show me your papers.’”

And at a time where confusion and chaos are being unleashed on the courts, sometimes, a plain acknowledgment can speak volumes: In September, U.S. District Judge Tim Kelly, a Trump appointee in Washington, D.C., didn’t wrestle over semantics when he extended a block on the administration’s plan to deport hundreds of Guatemalan children.

Government lawyers had told Kelly the deportations were “reunifications” because the children’s parents had asked for them to be sent back to Guatemala.

“That turned out not to be true,” Kelly’s seven words rang out in the order upholding an injunction on the children’s removal.

Not only had the Guatemalan government informed U.S. officials that they had been unable to locate most of the children’s parents, those they did find said they preferred their kids to stay in the U.S. because there was greater financial security for them here.

The administration’s claims, Kelly wrote, had “crumbled like a house of cards.”

When lower court judges go on record to say “not in our name, not in our Constitution’s name and not in our federal law’s name,” Sacks said, it matters.

“Do we want representative democracy in which we are ruled by the consent of the governed and the acts of Congress and our Constitution? Or do we want to be ruled by personalists, a would-be autocrat and a Supreme Court that makes and breaks policy on its own whims?” Sacks added.

With Trump circumventing the law and Justice Department lawyers increasingly taking positions that aren’t supported by historical precedent, it’s easy for the public to fall victim to cynicism. In that context, it’s deeply necessary to have someone reminding Americans that no, none of this is normal.

“The whole democratic system would be chipped away,” Kiesel said.

In early October, U.S. District Judge Karin Immergut, a Trump appointee, called the administration’s claims of a massive rebellion underway at ICE facilities in Portland as “simply untethered to the facts” as she scolded administration lawyers during an emergency hearing after her order barring the deployment of Oregon National Guard troops to Portland was circumvented.

Immergut put the stakes squarely in the context of foundational rights.

“This country has a longstanding and foundational tradition of resistance to government overreach, especially in the form of military intrusion into civil affairs,” Immergut wrote.

And, to government lawyers who claimed to think her order just applied to troops in Oregon, Immergut met them like a parent scolding an unruly child with endless excuses: “You are missing the point.”

A lack of credibility by the Trump administration and its lawyers was recognized by U.S. District Judge April Perry in Chicago, too. Overseeing a legal challenge to the deployment of National Guard to Chicago, Perry, who was appointed by former President Joe Biden, called the government’s allegations of outsized civil unrest in the city “simply unreliable.”

“I simply cannot credit [the Trump administration’s] declarations to the extent they contradict state and local law enforcement,” Perry said from the bench, adding that there was “no credible evidence that there is danger of rebellion in the state of Illinois.”

When an appellate court later upheld Perry’s order, judges on that panel emphasized that while the president may not like that people were protesting his administration’s deportation agenda, “political opposition is not rebellion.”

As Kiesel noted, the country and legal system have experienced periods of weaponized political and judicial extremism before — think of the Nixon presidency and the era of McCarthyism, he said.

But the nation has a way of “finding our center line again and bringing itself back into balance,” too.

These spicier rulings are blazing that trail. Having such unsparing language on the record provides both the public and other legal advocates stronger footing to lean on when they individually choose to speak out and engage.

“There is a whole new generation of lawyers coming that do want to work for the Justice Department, and many of them want a real opportunity to be officers of the law and not puppets for an administration,” Kiesel said.

Khadijah Silver, the supervising attorney for civil rights at Lawyers for Good Government, told HuffPost the dissent unfolding right now at the lower courts is a “real act of civil service.”

“They aren’t just saying what’s happening now is wrong. They are spelling out for the sake of the public and posterity what the law is in a way that is so crystally clear and lovingly crafted. And really, it’s written not just for the opposition, not just for people who brought the case, but for the country,” Silver said.

Think of these lower court rulings like thin strands being woven across the nation where each ruling that rejects Trump’s lawlessness is an attempt to reinstate “judicial normalcy,” they said.

“Without which, I believe we are lost,” Silver said.

That means those strands must be strong or “rather stark or even harsh,” to survive any attempt to snip them, they added.

These are judges telling the public and the administration alike that no matter what the executive branch or the court above them decides to do with their words, they are expressing what they know to be true to the letter of the law.

They are also reinforcing what Silver described as “certain standards of decency and humanity.”

“There’s something historic and courageous about stating simple facts in a time when words like ‘civil rights’ or ‘justice’ are being twisted to mean exactly the opposite of what they mean,” Silver said.

Trump and many of his administration’s supporters often chalk up their judicial defeats as a product of unchecked liberal activism from the bench. But Silver says that if you look at what these spicier rulings are really saying, it’s actually quite conservative because they are clinging to the law and insisting on operating within clear, established parameters.

“They are the ones saying, ‘Whoa, whoa, whoa, let’s have norms. Let’s have a rulebook. Let’s have any structure whatsoever to this,’” Silver said.

Judges themselves have flatly countered the accusations.

When dismissing Trump’s lawsuit against literally all Maryland judges over an order that had stopped the immediate deportation of migrants challenging their removal, Trump-appointed U.S. District Judge Thomas Cullen chose to speak out.

Any judge who ruled against the president was dubbed by him or his officials as “‘left-wing,’ ‘liberal,’ ‘activists,’ ‘radical,’ ‘politically minded,’ ‘rogue,’ ‘unhinged,’ ‘outrageous, overzealous and unconstitutional,’ ‘crooked,’” and more, Cullen emphasized.

“Although some tension between the coordinate branches of government is a hallmark of our constitutional system, this concerted effort by the Executive to smear and impugn individual judges who rule against it is both unprecedented and unfortunate,” he wrote.

Kiesel also pushed back in defense of the judiciary. “I’ve worked with dozens of judicial officers, both at the state and federal level in the last year, and I would say that every judge I have spoken with attempts to remove any personal consideration,” he said. “They take their oaths seriously and don’t shy away even as they recognize there is an implicit harm to themselves and their families in a way we’ve never historically seen at this nationwide level.”

Sacks said there has been no other time prior to President Franklin Delano Roosevelt’s tenure where the muscles of the presidency were being flexed so much.

“Trump is an altogether unique figure in the way he is wielding executive power like a monarch,” he said.

The lower courts, through their blunt expression, are working to uphold the law and give every American faith in the system, Sacks said.

But there is a cold reality that comes with all of these heated rulings.

A willingness to protect the rule of law only goes as far as a president is willing to go to protect it. The Supreme Court’s blessing of what amounts to blanket immunity for the president led Sacks to a sobering conclusion.

“No matter how strongly the district courts stand up for the rule of law, it will still be up to we the people to save ourselves,” he said.

America can do that, at the very least, by paying attention to those pulling law and order back from an abyss.

“Learn the names of the judges who are standing up for the rule of law as much as you know the names of those justices who are ruling for President Trump,” Sacks said.