I Found a Gold Mine - Verdict

Today I somehow stumbled across what is one of the best web sites I've ever visited, Verdict or verdict.justia.com to be precise. Verdict is a repository of legal analysis and commentary from some first-rate legal minds on the issues of the day, especially in the now deeply worrisome United States.

If you find such offerings of interest, check out Neil Buchanan's analysis of America's descent into "legalistic lawlessness" under Trump or the rise of the world's most powerful Banana Republic. A few teasers:

Trump has now, in his characteristically blustering way, said: “I’m actually, I guess, the chief law enforcement officer of the country.” He has decided that he can do anything, especially because he wrongly thinks that Article II of the Constitution gives him absolute power. As my Verdict colleague (and Dean of the University of Illinois’s law school) Vikram Amar wrote earlier this week, that is in a trivial sense an accurate statement of the bare bones meaning of the Constitution, but that open-ended power has generally been constrained by norms and, ultimately, by the threat of impeachment, conviction, and removal from office.

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One can see, then, why the image of the banana republic occurred to so many people in recent weeks. This is starting to look like a country in which a corrupt dictator holds power by abusing the legal system in an arbitrary way, punishing his enemies and shielding even the guiltiest of his friends. It is rule by impulse and caprice, throwing off the veneer of any regular order, due process, or legal constraint.

Trump himself clearly prefers the banana republic model, and it is difficult to imagine him agreeing to any constraints on his behavior. Even so, it is possible to be lawless while still pretending to live under the rule of law. Even while Trump is still around, but especially after he is gone (for whatever reason), I suspect that Republicans will start to build a legal system that has the earmarks of constitutional democracy but that in fact accomplishes the same arbitrary and unjust ends as the banana republic approach.

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Indeed, many of the most monstrous examples of state-sponsored injustice were built around the pretense of legalistic order. Nazi Germany and the Soviet Union did not simply allow arbitrary actions by state actors—or not only that. Both regimes held legal proceedings (darkly satirized in novels such as Kafka’s The Trial) that made it appear that those were not banana republics. 

It is, indeed, generally a priority for lawless regimes to dress up their actions in the garb of blind justice. The Nazis took great pains to document everything that they did and to organize their records, showing an affinity for law-and-order thinking without the bother of justice.

The Dark Age of Legal Lawlessness Descends on America

Even holding open a Supreme Court seat, as well as hundreds of lower court judgeships—naked power grabs that even the best efforts at sophistry could not legitimize—serves the ultimate purpose of making the system look legally legitimate. When five Supreme Court justices said that Trump can bar people from entering the country without the courts even being permitted to consider the plain evidence of his bigoted intent, Republicans had achieved their goal without having to simply shut down the courts, as banana republics do. 

But why am I calling this legalistic lawlessness, rather than simply a legal regime that I happen to think is regrettable on policy or normative grounds? The answer is that the regime that Republicans are in the midst of creating will not constrain anything that they want to do. That is, it will not be John Adams’s immortal vision of “a government of laws, not of men,” because the supposed limitations that the rule of law provides can be stripped away through doctrines such as standing, justiciability, and so on, along with new statutes that simply enshrine injustice into the law.

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As we enter our impending post-constitutional era, of course, there will be fewer and fewer judges even willing to consider ruling against the Republicans’ wishes, simply because the courts are being packed with Trump loyalists. Those remaining judges who wish to render independent legal judgments, meanwhile, will discover that the laws that they are sworn to uphold have been changed in ways that force the judges to do what Trump’s supporters want them to do, all with the gloss of legality.

Another excellent contributor is Cornell law professor, Joseph Margulies. His latest essay addresses how neoliberalism has transformed the United States into a "nation in freefall." Read it and ask whether we're not on the same path.