Law School News

Updated: 2 hours 46 min ago

Part III of Stone's "Trump, The Supreme Court, And The Rights Of Gays And Lesbians"

Tue, 02/14/2017 - 10:02
Trump, The Supreme Court, And The Rights Of Gays And Lesbians, Part 3 Geoffrey R. Stone Huffington Post February 13, 2017

In this, the third piece in the series, I will discuss the role of the Supreme Court in addressing the constitutionality of laws making sodomy a criminal offense.

With the nomination of Judge Neil Gorsuch to serve on the Supreme Court of the United States instead of Judge Merrick Garland, and with the possibility of another Trump Supreme Court nomination at some point down the road, it is useful to reflect on the history of homosexuality in Western culture and on the pivotal role the Supreme Court has played in helping to shape our nation’s laws in this regard.

The plain and simple fact is that, with two Trump appointments to the Supreme Court, should that come to pass, we can expect significant changes in the way the Court approaches the rights of gays and lesbians in the future. Before we get to that point, it is important to understand how we got to where we are today. It is only with that understanding that we can truly comprehend the magnitude of the challenge ahead. In my first two pieces in this series (which I have decided to expand to four posts rather than three), I discussed the history of homosexuality from the ancient world through the 1990s. See part 1 and part 2.

In this, the third piece in the series, I will discuss the role of the Supreme Court in addressing the constitutionality of laws making sodomy a criminal offense. Each of these posts, I should note, is drawn in part from my forthcoming book, Sex and the Constitution. I hope you will find this history instructive.

Read more at: 

http://www.huffingtonpost.com/entry/part-iii-...

Faculty:  Geoffrey R. Stone

Part II of Stone's "Trump, The Supreme Court, And The Rights Of Gays And Lesbians"

Mon, 02/13/2017 - 11:25
Trump, The Supreme Court, And The Rights Of Gays And Lesbians, PART II Geoffrey R. Stone Huffington Post February 10, 2017

In this post, the second of three on this subject, I will trace the history of homosexuality in the United States from the 1960s to the 1990s.

With the nomination of Judge Neil Gorsuch to serve on the Supreme Court of the United States instead of Chief Judge Merrick Garland, and with the possibility of another Trump Supreme Court nomination at some point down the road, it is useful to reflect on the history of homosexuality in Western culture and on the pivotal role the Supreme Court has played in helping to shape our nation’s laws in this regard. The plain and simple fact is that, with two Trump appointments to the Supreme Court, should that come to pass, we can expect significant changes in the way the Court approaches the rights of gays and lesbians in the future.

Before we get to that point, it is important to understand how we got to where we are today. It is only with that understanding that we can truly comprehend the magnitude of the challenge ahead. In my last piece, I briefly explored the history of homosexuality from the ancient world through the 1950s.

In this post, the second of three on this subject, I will trace the history of homosexuality in the United States from the 1960s to the 1990s. Each of these posts, I should note, is drawn in part from my forthcoming book, Sex and the Constitution. I hope you will find this history instructive.

Read more at: 

http://www.huffingtonpost.com/entry/589e8ef7e...

Faculty:  Geoffrey R. Stone

Aziz Huq, Eric Posner, and Tom Ginsburg on the Specter of a "Constitutional Crisis"

Mon, 02/13/2017 - 11:23
I asked 8 experts if we’re in a constitutional crisis. Here’s what they said. Dylan Matthews Vox February 13, 2017

Huq doesn’t think we’re in a constitutional crisis (“I don’t know what the term ‘constitutional crisis’ means, which I feel like is a very law professor thing to say,” he jokes) or that we’re engaged in democratic backsliding. But he thinks the danger is real and worth considering.

“Trash-talking the federal courts on Twitter does not create a constitutional crisis,” Yale’s Jack Balkin explained. “It's a really bad idea, but there are many really bad ideas that are not constitutional crises.”

But most experts said that if Trump were to start defying court edicts, that would very possibly qualify, and even his mere rhetoric ramps up conflict with the judiciary in a counterproductive and perhaps dangerous way.

And they were sure to add that even if we’re not in a constitutional crisis, that doesn’t at all imply that what is happening is normal, or moral, or fair, or decent. “I don’t like the phrase ‘constitutional crisis’ because it has this contention that unless the whole system is up for grabs, we shouldn’t care about an 18- or 19-year-old kid in Chicago who is so anxious about being deported he takes his own life,” Aziz Huq, a constitutional law professor at the University of Chicago, noted. “Crises happen everywhere on a micro scale. Just because they are happening to people on the margins doesn’t make them less important.”

Read more at: 

http://www.vox.com/policy-and-politics/2017/2...

Faculty:  Aziz Huq Faculty:  Tom Ginsburg Faculty:  Eric A. Posner

Huq Files Legal Brief in 9th Circuit on Travel Ban

Fri, 02/10/2017 - 17:21
University of Chicago Professor Files Legal Brief on Travel Ban Odette Yousef WBEZ February 9, 2017

Aziz Huq, Frank and Bernice J. Greenberg Professor of Law, has filed a legal brief with the 9th Circuit Court of Appeals in the matter of President Donald Trump’s travel ban. WBEZ’s Odette Yousef reported the story, available here.

Read more at: 

https://www.wbez.org/shows/wbez-news/universi...

Faculty:  Aziz Huq

Eric Posner: "The Presidency Shrinks"

Fri, 02/10/2017 - 12:36
The Presidency Shrinks Eric Posner ericposner.com February 9, 2017

The presidency shrinks…if the Ninth Circuit panel’s reasoning survives further layers of review. 

… if the Ninth Circuit panel’s reasoning survives further layers of review. Consider this passage from the opinion:

The States argue that the Executive Order violates the Establishment and Equal Protection Clauses because it was intended to disfavor Muslims. In support of this argument, the States have offered evidence of numerous statements by the President about his intent to implement a “Muslim ban” as well as evidence they claim suggests that the Executive Order was intended to be that ban, including sections 5(b)and 5(e) of the Order. It is well established that evidence of purpose beyond the face of the challenged law may be considered in evaluating Establishment and Equal Protection Clause claims.

When the district court holds a hearing on the motion for a preliminary injunction, it will consider evidence regarding President Trump’s “intention” or “purpose.” The state of Washington will seek emails, documents, and testimony from people in the White House (including Steve Bannon), Rudolph Giuliani, and others. I don’t know how many of these people will be required to testify, and how many documents will be privileged. But in the end the court will make a determination as to whether Trump deliberately targeted Muslims with no national security justification.

Read more at: 

http://ericposner.com/the-presidency-shrinks/

Faculty:  Eric A. Posner

William Baude on the 9th Circuit's Decision in Washington v. Trump

Fri, 02/10/2017 - 12:28
Quick Reactions to the 9th Circuit’s Decision in Washington v. Trump William Baude The Volokh Conspiracy February 9, 2017

Today the U.S. Court of Appeals for the 9th Circuit issued a unanimous per curiam decision in Washington v. Trump, denying the government’s emergency appeal to stay the temporary restraining order/preliminary injunction issued against Executive Order 13769.

Today the U.S. Court of Appeals for the 9th Circuit issued a unanimous per curiam decision in Washington v. Trump, denying the government’s emergency appeal to stay the temporary restraining order/preliminary injunction issued against Executive Order 13769.

I’m sure we’ll have lots to say about these legal issues as things evolve, but for now a few quick reactions:

1. While the decision is a complete win for the plaintiffs for now, it leaves a lot undecided. It rests on the most solid, and narrowest, theory of state standing (proprietary interests in the state universities in Washington and Minnesota). It decides that some of the affected individuals are likely to have successful due process claims. It does not reach the discrimination claim.

Read more at: 

https://www.washingtonpost.com/news/volokh-co...

Faculty:  William Baude

Eric Posner: "Gorsuch v. Trump"

Thu, 02/09/2017 - 10:12
Gorsuch v. Trump Eric Posner Ericposner.com February 9, 2017

Last night, my wife and I debated how Trump would react to Gorsuch’s statement that Trump’s attacks on the judiciary were “demoralizing and disheartening.” There seemed to be only two possibilities: say nothing or rebuke his own appointee. Trump, not for the first time, flummoxed both of us. He instead called the senator who reported the comments a liar, even though a White House staffer had confirmed them.

This effort to cut the Gordian knot accomplishes nothing. Democratic senators will ask Gorsuch again and again at his confirmation hearings whether he said these words or not. Gorsuch will be forced to say that he did (and, I hope, will go farther and say that he condemns Trump’s statements). Trump will be forced once again to take a position on his nominee, either acquiescing with silence in his own nominee’s repudiation of Trump’s behavior, or attacking Gorsuch head on rather than (as I interpret Trump’s tweet) indirectly. (“He couldn’t have said that about me; therefore, the senator must be lying.”)

It’s worth thinking about the possible calculus that would lead to withdrawal of the nomination. More informed people than I declare such a course of action impossible. The political damage would be immense. But it would have some logic, at least under the non-Euclidean principles of the Trumpian universe.

Read more at: 

http://ericposner.com/gorsuch-v-trump/

Faculty:  Eric A. Posner

Geoffrey R. Stone on "Trump, The Supreme Court, And The Rights Of Gays And Lesbians"

Thu, 02/09/2017 - 10:10
Trump, The Supreme Court, And The Rights Of Gays And Lesbians Geoffrey R. Stone Huffington Post February 8, 2017

The plain and simple fact is that, with two Trump appointments to the Supreme Court, should that come to pass, we can expect significant changes in the way the Court approaches the rights of gays and lesbians in the future.

With the nomination of Judge Neil Gorsuch to serve on the Supreme Court of the United States instead of Chief Judge Merrick Garland, and with the possibility of another Trump Supreme Court nomination at some point down the road, it is useful to reflect on the history of homosexuality in Western culture and on the pivotal role the Supreme Court has played in helping to shape our nation’s laws in this regard.

The plain and simple fact is that, with two Trump appointments to the Supreme Court, should that come to pass, we can expect significant changes in the way the Court approaches the rights of gays and lesbians in the future. Before we get to that point, it is important to understand how we got to where we are today. It is only with that understanding that we can truly comprehend the magnitude of the challenge ahead.

In this piece, the first of three I will post in the next week, I will briefly explore the history of homosexuality from the ancient world through the 1950s. Each of these posts, I should note, are drawn in part from my forthcoming book, Sex and the Constitution (now available on Amazon). I hope you will find this history instructive.

Read more at: 

http://www.huffingtonpost.com/entry/trump-the...?

Faculty:  Geoffrey R. Stone

Dennis J. Hutchinson on the Dangers of "Crying Wolf" over Neil Gorsuch

Thu, 02/09/2017 - 10:06
Crying wolf over Neil Gorsuch Dennis J. Hutchinson The Chicago Tribune February 8, 2017

The greatest risk to individual freedom now is excessive executive power. And the question for judges is, who can stand up to it and who will simply ratify it? 

Two principal arguments have emerged for opposing the confirmation of Neil Gorsuch to the U.S. Supreme Court. First, because Senate Republicans refused to provide a hearing to Judge Merrick Garland, President Barack Obama's nominee, Democrats should use whatever mechanism necessary to prevent a hearing for Gorsuch. The second argument is that Gorsuch is a judicial soul mate of the late Justice Antonin Scalia, whose seat he would assume, and thus is not in the "mainstream" of American legal thought.

I have known Neil Gorsuch for almost 25 years, although we are not close. Politically, I am a lifelong registered Democrat and have been for almost 50 years.

The first opposition argument amounts to "two wrongs make a right." That is simply a continuation of the shameless schoolyard level of debate that deeply marred the presidential campaign. Tit for tat may be politically tempting, but as a principle of evaluating judicial nominees, it goes nowhere, except as an excuse for all sides to ignore principle altogether.

Read more at: 

http://www.chicagotribune.com/news/opinion/co...

Faculty:  Dennis J. Hutchinson

Daniel Hemel on Washington v. Trump

Wed, 02/08/2017 - 10:55
Standing, Flip-Flops, and 4–4 Splits Daniel Hemel Medium February 7, 2017

Washington v. Trump may be headed to the Supreme Court — and with it the question of whether a state has standing to sue the federal government over enforcement (or nonenforcement, or misapplication) of immigration laws. 

Washington v. Trump may be headed to the Supreme Court — and with it the question of whether a state has standing to sue the federal government over enforcement (or nonenforcement, or misapplication) of immigration laws. As many others have observed, the standing question in Washington v. Trump is very similar to the standing question in Texas v. United States, the 26-state challenge to the Obama administration’s deferred action policy. There, Texas and its co-plaintiff states won in the Fifth Circuit, and an eight-member Supreme Court affirmed the Fifth Circuit’s decision by a 4–4 vote. As Roderick Hills writes, a “delicious irony” of Washington v. Trump is that the pro-immigration side is now arguing in favor of state standing while the anti-immigration side is arguing against — a reversal of roles from the Texas case.

As a formal matter, the Supreme Court’s 4–4 affirmance without opinion in the Texas case sets no precedent. Yet I think the Justices who voted to affirm in that case (i.e., the four who sided with Texas) must — if they are to be faithful to rule-of-law principles — vote in favor of state standing if and when they hear the Washington case. By contrast, the four Justices who voted to reverse in the Texas case have no obligation to vote against state standing in the Washington case, regardless of whether they can draw a normatively relevant distinction between the Texas case and the Washington case. This is so even if the Justices who voted to reverse in the Texas case did so on standing grounds. (We do not know which Justices voted which way in Texas, although most court-watchers will guess that it was the Republican-appointed Justices who voted with the states and the Democratic appointees who voted with the Obama administration.)

I recently posted on the ambiguity of the phrase “rule of law,” so I should be clear about what I mean by “rule-of-law principles.” I mean that a judge who applies rule R to party P in case 1 must apply rule R to party Q in case 2 unless there is a normatively relevant distinction between party P and party Q or between case 1 and case 2 that would justify the application of some other rule (~R) in case 2. This rule-of-law principle applies regardless of whether the decision in case 1 is precedential as a formal matter. Whether or not a decision sets a precedent is separate from whether the judges who issue that decision are obligated to act according to rule-of-law principles.

Read more at: 

https://medium.com/whatever-source-derived/st...

Faculty:  Daniel Hemel

Eric Posner on Washington v. Trump

Wed, 02/08/2017 - 10:46
Washington v. Trump Eric Posner ericposner.com February 7, 2017

Washington may win a partial or full victory this round, but I don’t think it can win in the long run.

Washington may win a partial or full victory this round, but I don’t think it can win in the long run.

Imagine that a judge had asked: “if we knew that Trump acted on anti-Muslim animus AND that the seven countries posed special security threats, what is the right outcome under the Establishment clause?”

Read more at: 

http://ericposner.com/washington-v-trump/

Faculty:  Eric A. Posner

William Baude on Originalism

Wed, 02/08/2017 - 10:32
Stephen Sachs on the Wrong Way to Criticize Originalism William Baude The Volokh Conspiracy February 7, 2017

Last week, Cass Sunstein wrote a column criticizing originalism and warning against an overly originalist nominee to the Supreme Court.

Last week, Cass Sunstein wrote a column criticizing originalism and warning against an overly originalist nominee to the Supreme Court. A key excerpt:

For example, originalism could easily lead to the following conclusions:
1. States can ban the purchase and sale of contraceptives.
2. The federal government can discriminate on the basis of race — for example, by banning African Americans from serving in the armed forces, or by mandating racial segregation in the D.C. schools.
3. The federal government can discriminate against women — for example, by banning them from serving in high-level positions in the U.S. government.
4. States are permitted to bring back segregation, and they can certainly discriminate on the basis of sex.
5. Neither federal nor state governments have to respect the idea of one person, one vote; some people could be given far more political power than others.
6. States can establish Christianity as their official religion.
7. Important provisions of national environmental laws, including the Endangered Species Act and the Clean Water Act, are invalid.
The president should not nominate, and the Senate should not confirm, anyone who subscribes to these seven propositions — and originalists have to do real work to explain why they reject them.

Mike Ramsey and Mike Rappaport have both responded, with Ramsey pointing out that “not much work is needed” to explain why most of these consequences will not come to pass.

Mike Rappaport, meanwhile, asks: “Even if Sunstein were right about this, what would that prove?” He argues that various types of nonoriginalism could “easily lead” to these conclusions as well. “In fact, to the extent that nonoriginalism is about pursuing discretion on the part of judges to pursue what a good constitution would be – which is a big part of nonoriginalism – nonoriginalism clearly would allow these results.” (There is much more here.)

That provoked an extended response from my sometime co-author Steve Sachs on Twitter, which he has cleaned up so that I could re-post it here.

The “Originalism Causes Bad Things” argument that Sunstein makes has always bothered me.

Read more at: 

https://www.washingtonpost.com/news/volokh-co...

Faculty:  William Baude

Eric Posner: "What Would a Constitutional Crisis Look Like?"

Tue, 02/07/2017 - 09:56
What Would a Constitutional Crisis Look Like? Eric Posner Ericposner.com February 6, 2017

Keith Whittington usefully identifies two types of constitutional crisis.

Keith Whittington usefully identifies two types of constitutional crisis:

  • Operational crises arise when important political disputes cannot be resolved within the existing constitutional framework. (p. 2101)
  • Crises of constitutional fidelity arise when important political actors threaten to become no longer willing to abide by existing constitutional arrangements or systematically contradict constitutional proscriptions. (pp. 2109-10)

In the context of Trump, an operational crisis would occur if Trump directed border agents to disobey a judicial order blocking his temporary immigration ban. The agents would then need to choose whether to obey the president or the judge, with perhaps no clear sense of the proper thing to do. Trump has not issued such an order. But the sense that we may be on the brink of crisis arises because he has personally attacked Judge Robart, who issued a nationwide TRO, and has laid the groundwork for a more vigorous attack on the independence of the judiciary if a terrorist attack takes place in the future. If Trump successful cows the judiciary or the judiciary stands up to Trump, then a crisis might be averted. Whether the outcome is good or bad depends on your view of presidential power.

Read more at: 

http://ericposner.com/2320-2/

Faculty:  Eric A. Posner

Daniel Hemel on What Gorsuch Could Mean for Public-Sector Unions (Audio)

Tue, 02/07/2017 - 09:55
If Neil Gorsuch Joins Supreme Court, That Could Spell Trouble For Public-Sector Unions Dan Weissmann WBEZ February 6, 2017

“If I were a public-sector union right now, I would be very concerned that a Justice Gorsuch would be the fifth vote to over-rule,” says University of Chicago law professor Daniel Hemel.

In Illinois, public-sector workers don’t have to join the unions and pay dues, but they do pay somewhat-lower “fees” that are supposed to cover the union’s cost in negotiating and enforcing contracts.

That’s due to a 40-year-old Supreme Court precedent. A couple of years ago, the Supreme Court accepted a case challenging that precedent, but Antonin Scalia died before he got to vote on it. The court split four-four without touching the precedent.

But a case in Illinois-- initiated by governor Bruce Rauner-- seeks to challenge the same precedent. 

“If I were a public-sector union right now, I would be very concerned that a Justice Gorsuch would be the fifth vote to over-rule,” says University of Chicago law professor Daniel Hemel.

Hemel says the case’s timing makes it a realistic candidate for the court to hear soon. 

“This case could be argued first Monday in October, 2017,” he says.

Listen (1 minute of audio)

Read more at: 

https://www.wbez.org/shows/wbez-news/if-neil-...

Faculty:  Daniel Hemel

Jonathan Masur on Trump’s Executive Order on Regulation

Tue, 02/07/2017 - 09:27
The Deep Incoherence of Trump’s Executive Order on Regulation Jonathan S. Masur Whatever Source Derived February 7, 2017

Trump’s executive order has been widely condemned for its anti-regulatory bias. But it is not merely anti-regulatory — it is deeply confused at its core. 

President Trump’s “Executive Order on Reducing Regulation and Controlling Regulatory Costs” has received a fair amount of attention for its “2-for-1” formula: if an agency wishes to promulgate a new regulation, it must “identify at least two existing regulations to be repealed.” But there is an additional requirement built into the executive order that has received less attention, which is the creation of a “regulatory budget.” Under the terms of the order, “the total incremental cost of all new regulations, including repealed regulations, to be finalized this year shall be no greater than zero.” That is, for every dollar of costs produced by a new regulation, an agency must simultaneously eliminate one dollar of costs from some other regulation (likely by repealing the regulation entirely).

Trump’s executive order has been widely condemned for its anti-regulatory bias. But it is not merely anti-regulatory — it is deeply confused at its core. 

Read more at: 

https://medium.com/whatever-source-derived/th...

Faculty:  Jonathan S. Masur

Aziz Huq Analyzes Immigration Order Arguments

Mon, 02/06/2017 - 14:55
Opposing Arguments on Immigration Order The Brian Lehrer Show February 6, 2017

A federal judge in Seattle has temporarily blocked President Trump's executive order on immigration while a judge in Boston rules not to extend an earlier temporary injunction.

A federal judge in Seattle has temporarily blocked President Trump's executive order on immigration while a judge in Boston rules not to extend an earlier temporary injunction. Aziz Huq, a professor of law at the University of Chicago Law School, explains the two judges' arguments and what might happen next.

Read more at: 

http://www.wnyc.org/story/opposing-arguments-...

Faculty:  Aziz Huq

Eric Posner Asks, "Are We in a Constitutional Crisis (Already)?"

Mon, 02/06/2017 - 13:54
Are We in a Constitutional Crisis (Already)? Eric Posner ericposner.com February 5, 2017

Is there a constitutional crisis? My view is no.

Is there a constitutional crisis? My view is no. But other people do believe there is a constitutional crisis, and if enough people agree with them, there will be. So it is not too soon to understand what these views are. I see two: a liberal legal view and a Trumpian view. I present them as sympathetically as I can while trying not to overstate them. To be clear, I agree with neither of them.

Liberal Legal

“Trump’s character and actions make clear that he does not respect our constitutional system. He has railed against, or shown serious disrespect for, many of our most important institutions and principles—the press, the electoral system, and the principle of political competition. He has expressed admiration for dictators while criticizing liberal democracies and the great accomplishments of liberal internationalism. In his latest actions, he has shown himself contemptuous of the judiciary, of principles of due process, and of basic norms of legality and fairness. True, he has not yet overtly broken any laws, or committed impeachable offenses. But our constitutional system vests significant discretion in the presidency; Trump’s intentions are clear; and we cannot afford to wait for him to commit serious abuses.”

Read more at: 

http://ericposner.com/are-we-in-a-constitutio...

Faculty:  Eric A. Posner

Eric Posner's Responses to Critics of His Op-Ed "Gorsuch Must Condemn Trump’s Attack on a Judge"

Mon, 02/06/2017 - 13:49
Responses to Criticisms of My NY Times Piece Eric Posner ericposner.com February 5, 2017

My op-ed generated many more tweets and emails than I could respond to, so with apologies to my critics, I gather my thoughts here.

My op-ed generated many more tweets and emails than I could respond to, so with apologies to my critics, I gather my thoughts here.

1. “Many presidents have criticized judges. Haven’t you heard of Teddy Roosevelt’s ‘banana’ comment about Holmes?”

Presidents have frequently fulminated against judges in personal terms in private, and often disagreed with the Supreme Court about its rulings in public. I still haven’t heard of a case where a president publicly attacked the character of a judge who ruled against him. Even if such a case exists, it would prove only that other presidents have acted irresponsibly. But if someone has heard of such a case, send it to me and I will post it in this blog.

Read more at: 

http://ericposner.com/responses-to-criticisms...

Faculty:  Eric A. Posner

Eric Posner on Why Gorsuch Should Condemn Trump

Mon, 02/06/2017 - 13:39
Why Gorsuch Should Condemn Trump Eric Posner ericposner.com February 4, 2017

Some people have said that because we normally don’t expect nominees to the Supreme Court to take “partisan” positions or to take a position on a pending case, Gorsuch should keep silent on Trump’s “so-called judge” remark. 

Some people have said that because we normally don’t expect nominees to the Supreme Court to take “partisan” positions or to take a position on a pending case, Gorsuch should keep silent on Trump’s “so-called judge” remark. But I did not say that Gorsuch should condemn the immigration executive order, which (indeed) I have said I believe is legal. Gorsuch is within his rights to refuse to comment on it, and, in fact, should refuse to comment on it.

What makes this case special is Trump’s “so-called judge” remark, which is clearly an attack on the independence of the judiciary.

Read more at: 

http://ericposner.com/why-gorsuch-should-cond...

Faculty:  Eric A. Posner

Eric Posner: "Gorsuch Must Condemn Trump’s Attack on a Judge"

Mon, 02/06/2017 - 13:27
Gorsuch Must Condemn Trump’s Attack on a Judge Eric Posner The New York Times February 4, 2017

Judge Neil Gorsuch, President Trump’s nominee for the Supreme Court, must publicly condemn the president’s attack on the judge who blocked his immigration order.

Judge Neil Gorsuch, President Trump’s nominee for the Supreme Court, must publicly condemn the president’s attack on the judge who blocked his immigration order. Judge Gorsuch’s sterling credentials notwithstanding, his supporters in the legal community should withdraw their backing for his nomination if he fails to do so.

After Judge James Robart’s ruling Friday evening, Mr. Trump wrote on Twitter, “The opinion of this so-called judge, which essentially takes law-enforcement away from our country, is ridiculous and will be overturned!” Mr. Trump may be right that the order will be stayed or overturned — the legal merits are tricky, and Judge Robart has not heard full briefing of them yet. But the attack on Judge Robart’s integrity is indefensible.

Federal judges have frustrated American presidents since the founding. Thomas Jefferson fulminated against judicial overreach and tried to get a Supreme Court justice impeached. Andrew Jackson disregarded a judicial order from the Supreme Court, Abraham Lincoln suspended the writ of habeas corpus and Franklin D. Roosevelt tried to pack the Supreme Court with his own appointees after it blocked many of his New Deal reforms. In his 2010 State of the Union address, President Obama criticized an opinion of the Supreme Court on campaign finance reform in front of some of the justices.

Read more at: 

https://www.nytimes.com/2017/02/04/opinion/go...

Faculty:  Eric A. Posner

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