Eric Posner Throws Down the Gauntlet on “Trump v. Judiciary”

Over at his customarily insightful web-log, University of Chicago law professor Eric Posner is issuing a challenge: “I’m looking for someone who will provide a legal or constitutional defense of Trump’s attack on the courts.” By “attack,” Posner means President Donald Trump’s recent statements that the judiciary (or at least part of it) is standing in the way of the nation’s national security interests. These statements come on the heels of Judge James Robart’s decision to issue a temporary restraining order against Trump’s controversial executive order (EO) 13,769, which temporarily restricts travel and immigration from seven predominantly Muslim countries. The matter is now before the 9th Circuit Court of Appeals.

I am skeptical that either “a legal or constitutional defense of Trump’s attack on the courts” is necessary given that this so-called attack is, at the moment, primarily political and rhetorical. Although Posner makes a loose comparison between “Trump vs. Judiciary” and “Reagan/G.W. Bush v. Congress,” the latter battle, although infused with political elements, was carried out at the legal level. Poser acknowledges, for instance, that “the Reagan administration . . . sought to change [constitutional doctrine concerning executive power] from within by appointing ideologically committed conservative judges and justices.” Arguably, Trump could go a similar route, though it would take a great deal of time—and even then there is no guarantee that judges who appear highly deferential ex ante their appointments will remain so ex post. As recent Supreme Court history has shown, Republican-appointed justices can and will defect from conservative orthodoxy on numerous matters, ranging from abortion to the power of the government to (apparently) mandate individual entry into the health-care market.

Now, as to Trump’s attack itself, whether it is accurate or not is an empirical question. Up until recently, few doubted that the courts are largely deferential to the executive when it comes to foreign affairs, including national security. Posner does not believe this has changed; rather, he appears to believe that the judiciary does not want to green-light ethnic or cultural discrimination. (It is interesting that Posner does not use the word “religious,” perhaps because he acknowledges that the judiciary has a long history of upholding certain discriminations against religious groups and practices.) And so, to the extent that Trump’s EO (and anticipated future national-security measures) seeks “to purify America of foreign influences in a cultural or even ethnic sense,” the courts are unlikely to budge. If so, that likely has far more to do with ideological rather than legal commitments. The Constitution is openly available to be read in a decidedly ideological manner with little-to-no immediate concern being given to legalism in the strict sense. Whatever creative legal or constitutional argument that can be constructed upholding the EO can be thwarted by equally creative legal or constitutional arguments to the contrary. Ideology, not law, is king.

In the end, there appears to be little reason to believe that a “Trumpian view of the Constitution” isn’t ideological as well. The constitutional text, along with the laws which are ostensibly in harmony with it, is silly putty; it can be twisted and stretched in incalculable ways and pressed against the Zeitgeist to take on new appearances. Maybe Trump does want to “purify” America, or maybe he just wants to keep it secure from credible foreign threats which happen to be associated in the public imagination with a particular ethnic-religious grouping. The judiciary, as currently constituted, may be uncomfortable with one or both possibilities, but Trump needn’t appeal forever to law to overcome them; there are many other less savory means at his disposal.

Critical and Unclear

Critical theory is a fun little tool that will get you published, maybe even laid on a college campus, but not much else. Pick whatever you wish off the shelves of any Left-leaning library and run with it. If you should be endowed with better-than-average literary chops, you might even be able to secure tenure, or the next best thing: a well-trafficked web-log. Although it stands to reason that there have been critical theorists over the past century who genuinely believed that their largely masturbatory pet projects were actually in the service of “human liberation” (whatever that means), the harsh reality is that most of what emerged from, and following, the so-called “Frankfurt School” remains a niche academic interest for graduate students who don’t really understand life and undergraduates who understand neither life nor the theories that ostensibly elucidate it. Rather, under the critical gaze, all of life is reduced to a series of power struggles, deceptions, interpersonal conflicts, and epistemological anarchy and communication becomes little more than an empty exchange of jargon-filled platitudes parading as insights.

Had I, more than a decade ago upon leaving undergrad, thought that I would still be running across the critical-theory crowd, I might have been inclined to go live in a shack in Montana. It had been my assumption that children’s things would no longer be relevant once I entered the “real world,” and for a time my “real world” was legal academia as both a student and faculty fellow. Sure, legal studies, like most disciplines at one time or another, flirted with critical theory, but by the time I was hard at study that movement had been suffocated by the equally noxious “Law & Economics” movement (one, which I am sorry to say, I actually got behind). Penning law-review pieces that quoted Marx, Horkheimer, Barthes, Habermas, etc. stopped being “edgy” 25 years ago. Sure, for obvious reasons there was still room for some Foucault, but who today wants to admit they spend serious time with the likes of Catharine McKinnon, Duncan Kennedy, and Roberto Unger?

I write this despite the fact several acquaintances of mine believe that what we need now more than ever is a refresher on critical theory, specifically its roots and the social movements some believe it inspired. I imagine this sentiment has emerged out of a general frustration with the contemporary Left, specifically the contemporary young Left and its obsession with the pettiest form of identity politics and melodramatic declarations of oppression. Although less visible, and probably not front-and-center in the mind of any Leftist, is the small but apparently growing body of Christian Leftists who, in an often confused and contradictory manner, adopt what they think is a Leftist posture in order to make themselves appear relevant in a cultural milieu that really has no interest whatsoever in what “Jesus Kids” have to say about poverty, racism, war, and so forth. Might it not be possible, some hope, for the Left to be reinvigorated by a return to a more serious time, a period when critically engaging the world and its power structures meant more than sending out Tweets and discussing “polity” with your fellow white, Ivy League graduates?

Maybe, but it seems to me that a return to seriousness is a return to the days when men would kiss their wives, hug their children, and take to the streets, mountainsides, or forests with knives, guns, and Molotov cocktails to not simply “make a point” but literally take apart the machinery of their misery. Not that I endorse such a course of action, mind you, at least not for all of the purposes and interests that often motivated such otherwise well-meaning men, but there is a great deal to be said for having, as they say, “skin in the game.” For nearly a century, a good number of anarchists, communists, and socialists of all shapes and sizes had a great deal of “skin in the game”; if you don’t believe me, just spend a bit of time perusing the history of Western Europe and the United States from the 19th Century onward. Tales of government-backed manipulation, maiming, and murder—all in the name of upholding the fruits of liberalism—fill the history books or, rather, ought to. Actually, what fills the history books even to this day is one long lie about the “progress” of human history and our arrival at its “absolute moment,” an era of unfettered access to porn, booze, and reality television.

During long stretches of highway driving, or even in just a quiet moment of personal reflection taken while in line to buy cigarettes, I have found myself wondering that if/when the “revolution” comes, who will be lined up against a wall and shot first: Me or the coffee-shop commie kid? I jest. There is no revolution coming, at least not from the Left. The steady erosion of life—its meaning and transcendence—that is and has always been part of the liberal project will likely continue unabated during my sojourn on this earth. To hope for anything else seems unreasonable, and yet it is terrifically easy to imagine three or four moves on the global chessboard that could quickly turn the relative passivity of Western (post)modern existence into a bloodbath. Perhaps that’s already happening and for reasons which are still unclear to me, I don’t want to see it.

Don’t Study the Constitution?

Richard Posner, the iconoclastic judge of the Seventh Circuit Court of Appeals and one of the founders of the “Law & Economics” movement, says there is “no value” in studying the U.S. Constitution. People, naturally, are in an uproar over this — people who know nothing about Posner’s views, that is. Anyone who has paid even a shred of attention to what Posner has been writing about for the last 20 years should know by now that he takes an extremely low view of the sub-discipline known as constitutional law. In fact, Posner takes a fairly low view of jurisprudence generally and theories of morality specifically. At a certain level, I have a hard time disagreeing with him. Regardless of who is ultimately responsible, contemporary constitutional law — including the judicial behavior of the Supreme Court of the United States (SCOTUS) — is political, not legal. While there are some fundamental constitutional rules governing areas such as criminal procedure and speech which most law students should be familiar with upon graduation, the large bulk of extant constitutional law isn’t necessary to study. Supposedly time-honored canons of interpretation, along with various theories of construction, mean very little these days; they are artifacts which should interest historians more than lawyers. No, maybe this isn’t how things “ought to be,” but it is where matters lie in 2016 and we’d all be better off if we didn’t kid ourselves that it’s otherwise.

Speaking from my own experience, I am pretty confident that I learned next-to-nothing of lasting value from two semesters of constitutional law. My time would have been better served reviewing the topics tested on the bar exam and leaving it at that. (The irony here is that the law review comment I wrote during my 2L year was on…the Eighth Amendment.) Now, had I ambitions to become a constitutional-law scholar or political historian, there would of course have been great value in studying the constitution, its intellectual underpinnings, and all of the relevant case law which has stacked up over the centuries. But how many people are going to “ascend” to that level? And how many people do we even need in such roles? As Posner has pointed out before, the academic constitutional-law enterprise is pretty worthless, both practically and theoretically. Most forays into constitutional law concern the writer(s) masking their own pet moral views under the cloak of legality and claiming this is why SCOTUS was right/wrong in a particular case (or series of cases). Posner is right. Who cares? And beyond that, who has ever read a law review article praising/damning a particular case because of some abstract moral theory and been convinced to change their mind on the matter? (Ok, I am sure some impressionable law students have, but outside of keeping the lights on in law schools with their hard-earned debt, they don’t really count.)

“Law School Trilogy” Posts

Note: The following — lengthy — post is a collection of three separate posts dealing with law school which appeared on Opus Publicum‘s predecessor, Ius Honoarium, in late 2011/early 2012. Since the question of my experience in law school (and after) arises from time to time, I thought it may be of some service to re-post them. At the time I wrote them, I was a faculty fellow at DePaul University College of Law. Please remember that these posts are nearly five years old; my thinking has developed on some of the sub-issues addressed below.

A Passing (Personal) Comment on “Academic Institutes”

After posting earlier about think tanks, a friend of mine messaged me to inquire whether the black-box nature of think tanks is also present in formal academic institutes, that is, subdivisions existing within university schools or departments which are dedicated to a particularized field of study. The reason he asked me this is because I spent nearly five years associated with one directed toward international aviation law and had up-close familiarity with numerous others covering, inter alia, human rights, intellectual property, and animal law (ugh). My frank answer was, “I don’t know. It depends.” I realize that’s not terribly helpful, but given the sheer size and diversity of academic institutes out there, it’s very difficult, if not impossible, to color them all with a single bucket of paint. Besides, I know very little about the nature of institutes dedicated to, say, the physical sciences or the arts; my “realm” was always law. With that out of the way, I do think it is fair to say that legal-academic institutes which rely heavily on donor money, particularly corporate and special-interest donor money, are always at risk of being captured ideologically. For instance, here is an excerpt from the mission statement of my former institute, which appears on its website:

IALI [The International Aviation Law Institute] strives to be the premier source for research, analysis, and study of international aviation law and policy. To achieve this mission, IALI is engaged in educating the next generation of experts in aviation law and policy through both its journal, Issues in Aviation Law and Policy, and its academic programs; originating and disseminating groundbreaking research and analysis of timely issues in aviation law and policy for the benefit of academics, policymakers and industry stakeholders; and acting as a forum to inform, advocate and promote a liberal, free market approach to the transnational air transport industry.

Notice the last sentence: IALI exists to “act[] as a forum to inform, advocate and promote a liberal, free market approach to the transnational airport industry” (emphasis mine). (In the interest of full disclosure, dear readers, I had a direct hand in penning that line many moons ago.) It should come as no surprise that IALI receives direct support from several major international carriers, including United and FedEx, and regularly participates in conferences dedicated to air-transport liberalization. (Also in the interest of full disclosure, dear readers, I directly benefited from this donor money for most of my time with IALI.) I can say from personal experience that that there was little-to-no tolerance at IALI or among its allies for any research or writing suggesting that the air-transport industry and its workers may be better off through the introduction of more regulation or transnational oversight. Indeed, the only time regulation was ever mentioned with a positive ring is when it protected airlines colluding with each other under blanket grants of antitrust immunity. When I authored (eventually co-authored) an article published in the Harvard Environmental Law Review, I was compelled to insert footnotes and qualifying language suggesting that not only should international air carriers not be subject to transnational emissions regulations, but that man-made climate change itself is possibly a myth. The donor base for IALI would have been unhappy otherwise.

How common this behavior is among legal-academic institutes is anyone’s guess, though very few exist without external support. There has been a longstanding suspicion that institutes dedicated to the so-called “Law & Economics” movement have been directed primarily by interests favoring free-market capitalism. Similarly, human-rights law institutes invariably favor Western, liberal-democratic responses to human-rights issues and act to promote an Enlightenment-era conception of “rights” rather than, say, study the efficacy of international human rights law (a far more defensible academic enterprise). Given how closely law is intertwined with policy and politics, I would not be the least bit surprised to find that a majority of legal-academic institutes directed by particular ideological orientations that favor the interests of their respective donors.

Posner on Reforming Legal Practice

Judge Richard Posner does a fine job of angering just about everyone from time to time, though he often does it in service to reforming the legal profession from top to bottom. Good for him. While I am far from being in perfect agreement with Posner about a great many things, I can’t help but think he’s on to something with his latest (academic) article, “What is Obviously Wrong with the Federal Judiciary, Yet Eminently Curable – Part I,” 19 Green Bag 2d 187 (2016). Here are some excerpts (but definitely read the whole thing):

Posner on Trump

Eric Posner, a law professor at the University of Chicago, has posted a fascinating reflection on whether the Constitution and American political institutions are strong enough to constrain (potential) President Donald Trump, assuming he chooses to behave like a dictator. Here’s an excerpt:

Let’s consider one of Trump’s proposals: to strengthen libel law so that he can punish those who criticize him. Could he do this? He cannot do it by executive order, and he probably cannot do it even if he persuades Congress to pass a law. First Amendment doctrine is clear: a court would strike down the sort of libel law that Trump advocates (or appears to advocate).

But there are ways that Trump could maneuver around this barrier. If he can appoint flunkies to head the Department of Justice and the FBI (Chris Christie, maybe?), they can order agents to spy on a political opponent and bring prosecutions. All that is needed is a reasonable suspicion of law violations, and there are so many laws that any prominent person, particularly journalists and opposition politicians, might violate even if inadvertently—campaign finance laws, tax laws, business licensing laws, and secrecy laws come to mind, depending on the person’s activities—that an excuse for audit, inspection, or surveillance can be ginned up. Judges can interfere at various steps along the way; whether they do will depend on whether there are plausible reasons to think that the person has broken a law (think of Hillary Clinton, for example). While nothing may come of the investigation, the risk of such harassment, if pursued vigorously enough, may deter opposition to Trump at the margin.

To be fair, I think Posner may be overplaying his hand a bit by suggesting so strongly that Trump will indeed choose to behave like a dictator should he assume office. Moreover, Posner’s suggestion, found elsewhere in his post, that people flock to Trump because they “yearn for a strongman who will protect them” is too condescending to take seriously. Still, it’s not out of the question that Trump will follow his predecessors (particularly George W. Bush and Barack Obama) in expanding the centralized powers of the Presidency. That shouldn’t surprise Posner one bit, particularly since he, along with Harvard professor Adrian Vermeule, announced the death of the Madisonian system of checks-and-balances in their 2010 book The Executive Unbound.