When Judges Twist the Law to Serve Their Own Prejudices

Trump hatred may be more pervasive than anybody thought. It seems even the judiciary harbors a sizable complement of Trump-haters.

Professor Marc Degirolami, from St. John’s University School of Law, writes:

Something ugly is happening to the First Amendment. It is being contorted to enable judges to protest Donald Trump’s presidency. The perennial impulse of judges to manipulate the law to achieve morally and politically desirable ends has only been exacerbated by the felt necessity to “resist” Trump. The result: Legal tests concerning the freedoms of speech and religion that in some cases were already highly dubious are being further deformed and twisted.

Welcome to the rise of fake law. Just as fake news spreads ideologically motivated misinformation with a newsy veneer, fake law brings us judicial posturing, virtue signaling, and opinionating masquerading as jurisprudence. And just as fake news augurs the end of authoritative reporting, fake law portends the diminution of law’s legitimacy and the warping of judges’ self-understanding of their constitutional role.

Those who try to police the relentlessly transformational projects of constitutional progressives had much to dread from the Obama administration, an inveterate ally of the legal left that did what it could to graft the aspirations of progressives onto the Constitution. But Trump’s presidency may be even worse, because too many judges now feel called to “resist” Trump and all his works — no matter the cost to the law’s authority and to the integrity of the judicial role.

In one recent deformation, Trump was sued for incitement to riot and assault and battery when, at a campaign rally before he became president, he said “Get ’em out of here” in response to protesters in the audience. Several of these protesters were subsequently pushed and struck by others in the crowd. A Kentucky federal district judge ruled that the case against Trump could proceed because “Get ’em out of here” could reasonably be interpreted as an exhortation to attack the protesters.

The most astonishing part is the court’s conclusion that the statement is not protected by the speech clause of the First Amendment because it is plausible to think Trump was inciting a riot.

Even so, Professor Degirolami doesn’t see Trump as blameless for the hatred he arouses in his political adversaries:

Trump, too, is responsible. His incompetence, his pugnacity, his reliably ill-advised policies, and his boorishness combine to cause his political adversaries to see all shades of red in whatever he does. Enraged legal academics have manufactured grotesque theories about the emoluments clause, the Electoral College, and the establishment clause just to bring him down.

As more courts succumb to similar Trump-hatred in the exercise of their constitutional duties, the damage to the law’s legitimacy and to the institution of the judiciary will only intensify. As with fake news, it is one of the pathologies of fake law that we are likely to forget what real law looks like. Soon enough, we won’t even know the difference.