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blakereid

@blakereid@mastodon.lawprofs.org

Law prof. Tech/telecom/1A/copyright x #a11y/disability law. Ketchup, Crocs, ska, too many guitar pedals. He/him. No legal advice. Bad toots my mom’s fault.

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blakereid , to random
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Judge Cannon’s ruling is disturbing and alarming. But it should not be surprising. That it is suggests a lack of awareness of what is happening. Here it is: there is a sizable chunk of the American judiciary scattered across the trial and appellate courts (particularly the 5th Circuit) and a majority of Supreme Court Justices that are willing to depart the rule of law toward overtly partisan ends in cases involving President Trump and radiating outward to other partisan priorities. 1/

blakereid OP ,
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It is important for lawyers, academics, journalists, and other commentators to understand that these cases do not represent some faithful, learned, good-faith, balls-and-strikes interpretation of primary legal materials applied to the facts at hand. They are an exercise of political power. And they need to be understood as such. 2/

blakereid OP ,
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It is critical to understand that this dramatically shifts the role and power of lawyers. There is no amount of carefully crafted legal argumentation or strategy that can lead to different results in these cases. That does not mean that lawyers do not have important work to do in bringing forth good-faith arguments and bearing witness to the derogation of of the rule of law. (That’s part of the oath lawyers in most (all?) states take to support the Constitution.) 3/

blakereid OP ,
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But once judges have broken bad and abandoned their commitment to perform their critical role in upholding the rule of law to become overtly political actors, there is no legal remedy left—only political ones. At a federal level, they basically boil down to Congress exercising its prerogative to reshape the judiciary, impeachment proceedings, and the constitutional amendment process. 4/

blakereid OP ,
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There is a great temptation among many commenters to dither on the flaws in the superficial reasoning provided in cases like these in the hopes that the legal system can provide remedies. And of course those remedies should be pursued. And perhaps someday with political change, the foundations of reasoning and argument they develop will form the basis for the rule of law again. Again, lawyers play an important role here. 5/

blakereid OP ,
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But it’s important to remember that those remedies will over and over again run aground on the shoals of politics in areas where judges and Justices have decided to depart from the rule of law. And it is important that these cases not be framed entirely through legal lenses at the expense of the political remedies that respond in kind to what is happening. These cases demarcate the boundaries of what lawyers can do to defend and protect the Constitution and democracy. /fin

blakereid OP ,
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One quick coda: of course, the border between politics and law is never clear, and some will argue that legal adjudication is always political. There are hard cases in this space—compare, for example, the Supreme Court’s recent opinion in Trump vs. U.S. versus the one in Moody v. NetChoice that dropped 10 minutes earlier. /PS1

blakereid OP ,
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We may have a good sense pinning down that Trump v. U.S. is unacceptably political because of the subject matter, the departure from precedent, and the surrounding political circumstances. Yet it may be harder to explain why NetChoice isn’t (and some people might argue that parts of it are). And we could risk losing any semblance of the rule of law in the long run if political remedies to reform the judiciary go too far. This is why it’s important for lawyers to keep working in good faith. /PS2

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