Put not your trust in judges
The fall of Michael Flynn involved not litigation, but threats of prosecution. But, if Trump is in fact brought down by the same scandal, it will not be leftwing litigation that does it, but the creation of a cross-party and inter-bureaucratic political coalition. And the result, if so, argues Howe Cheatem, will be president Pence and a new and rapid war drive
Donald Trump and Neil Gorsuch: tilting the balance of Scotus
Not so long ago, the media were giving intense attention to the decisions of the Queen’s Bench Divisional Court (November 3 2016) and the UK Supreme Court (January 24 2017) on Gina Miller’s litigation demanding that an act of parliament should precede the triggering of article 50 by Theresa May. The decisions were presented by the media as serious defeats for May’s government.
‘Not with a bang, but a whimper’, however: it turns out that all that is needed to satisfy the judgments is a very short act of parliament. (No surprise to any lawyer, since this stuff is usually taught at the beginning of a law degree.)
In fact, it appears that the real reason for May’s government to have resisted the demand for an act of parliament to authorise the triggering in the first place may have been, precisely, so that there should be judgments against the government. These could serve the purpose of the Tory press keeping the ‘Brexiteer’ fervour whipped up against ‘remoaner’ elites supposedly blocking the popular will. This political context then makes it practically impossible for either Labour or Tory ‘remainers’ to mount any effective opposition to the government’s plans; the litigation activities were false friends to ‘remain’ campaigners.1
An analogous process appears to be going on in the US. On January 27 the new president signed an executive order barring entry to certain refugees and to people from seven, predominantly Muslim, countries.
These countries were probably selected by the fact that they had already been targeted for tougher immigration control by the Obama administration. It remains striking that the one country whose citizens notoriously have executed a large-scale terrorist attack on US soil - Saudi Arabia - is not included: again, continuity with the Obama administration’s covert alliance with Saudi Arabia and its jihadi terrorist puppets, while ostensibly denouncing these puppets.
But Trump’s order was radical in that it barred persons with visas to enter the US, including some who already had ‘green cards’ permitting them to live and work in the country. Trump was using executive prerogative rights both to make general law and to divest vested rights: that is, to legislate. It caused immediate chaos at US airports.
Predictably, like the May government’s claim that the government could trigger article 50 without a parliamentary vote, Trump’s travel ban order prompted rapid litigation. An interim decision was first of all taken on the claims of the states of Washington and Minnesota - where federal district judge James Robart on February 3 issued a ‘temporary restraining order’ (TRO - in English law terms, an ‘interlocutory injunction’) barring implementation nationwide. Trump denounced the “so-called judge”, but the administration immediately appealed as a matter of urgency rather than attempting to instruct immigration officers to defy the ruling.
The Federal Ninth Circuit (west coast) Court of Appeals refused to overturn the TRO on an interim basis on February 4, but heard the appeal against it very fast on February 7 and handed down its ruling, reaffirming the decision on February 9.2
Just see how quickly courts can act when they are under a lot of political pressure! Contrast the 2011 decision in Sienkiewicz v Greif, where the final decision in litigation about tort liability for mesothelioma due to asbestos exposure at work was delayed until six years after the death of the original victim.3 This was not an unusual degree of delay in such cases.
Trump, and White House sources more generally, have continued to denounce the decision and Fox News reported that “Republicans push bill to split up ‘nutty 9th Circuit’” (February 9), while White House spokesman Stephen Miller called the decision a “judicial usurpation of power”. But, in spite of Trump tweeting “See you in court!”, the administration has not, in fact, appealed to the United States Supreme Court. (The court is now commonly called ‘Scotus’, a US-military-style acronym, analogised from ‘Potus’ for the president, which is an actual department of defense acronym;4 the style has become popular, along with growing US militarism.5 From now on I will use the new terminology for convenience.)
Why not? The answer is, most likely, because the decision of the Ninth Circuit Court of Appeals is extremely narrow - contrary to the impression which has been given of it by the media.
In the first place, they are both decisions about a TRO: an interim bar on applying Trump’s order, pending a full trial of the Washington and Minnesota claim. For this reason it might well happen that Scotus would simply refuse to hear an appeal; and anyhow the White House could respond to the media (as they did) that they were confident they would win at full trial.
Secondly, the actual argument is pretty narrow. It is conceded that the general power to let non-citizens into the country or keep them out is prima facie in the executive. This concession is plainly correct on the basis of the design of the US constitution, which is elective-constitutional-monarchist, with substantial carry-overs of 18th century English law, and on the basis of the prior precedents. The case that Trump’s order was unconstitutional can then be made in one of two ways.
Either, which is not straightforward, reading the order together with Trump’s electoral promise of a ‘Muslim ban’, it amounts to an ‘establishment of religion’ contrary to the ‘establishment clause’ in the first amendment to the constitution. This is not straightforward because, though there is precedent in support of it, it is all from the later 20th century, and is rejected by some ‘originalist’ legal theorists, for whom the general Christianity of the founders, and their Christian language, means that the establishment clause only prohibits establishment of a particular Christian religion and does not prohibit discrimination against non-Christian religions (an approach common in US practice down to World War II).6
Or, which is perfectly straightforward, the point is that it revokes existing visas and green cards without even the slightest due process for the individuals affected. This is not a controversial point at all. This is also the central point which, according to the Court of Appeals, justified the right of Washington and Minnesota states to sue: that the effect of the order was to exclude some of their employees who held green cards, came from affected countries and happened to be overseas when the ban was introduced; hence the states’ rights as employers were directly infringed.
The consequence is that - as the White House said on February 11 - it would be pretty easy to draft a new ban which would not fall foul of the reasoning of the decision, by leaving existing visas untouched (or even merely providing a case-by-case procedure for revoking them).7
Moreover, this approach would have the advantage of delay. As things now stand, Scotus is split four-four between ‘liberals’ and ‘conservatives’. If, however, Trump’s nominee, Neil Gorsuch, is endorsed by the Senate before any appeals reach the court, the ‘conservatives’ will have a prima facie majority. Washington Post journalists wrote on January 31 that “Republicans are hoping to confirm the nominee by early April before a two-week Easter recess, allowing Gorsuch to participate in the final cases of the court’s term ending in June.”
If, then, the due process aspects of Trump’s original order could be got out of the way, and the focus could be solely on executive powers in immigration control and the proper scope of the establishment clause, the litigation might end somewhere in the summer with a resounding reversal of establishment clause case law since the 1960s.
Meanwhile, just as the Miller litigation provided a target for the Mail and so on to attack ‘remoaners’, with the wind in their sails because of widespread mass opposition to immigration, so the travel ban litigation in the US provides the Trump administration with the opportunity to keep targeting liberals and liberal judges as elites undemocratically blocking the popular will.
But, it may be said, the constitution there is different: the US courts are more powerful than UK courts. True, but only partly true.
Here, parliament is in theory sovereign (at least, that is what the Divisional Court and UK Supreme Court decisions in the Miller case on article 50 say). The underlying meaning of this sovereignty is that the final appeal is not to the UK Supreme Court, but to parliament. That means that, if push comes to shove, parliament can pass an act simply reversing a judicial decision: as was done, for example, in the National Health Service (Invalid Direction) Act 1980 - validating an individual ministerial decision which had been struck down as unlawful by the courts.
This juridical position, reaffirmed in Miller, is subject to real political limitations. The most important of these is that for a Labour government to pass an act like the NHS (Invalid Direction) Act 1980 would be regarded as precipitating a constitutional crisis, while it is constitutionally acceptable for Conservative governments (backed by the Tory press) to do so.
In the US, the 1803 decision in Marbury v Madison and its subsequent interpretation mean that the United States Supreme Court is juridically sovereign. That is, neither Congress nor the president has juridical power to actually reverse a decision of Scotus.
That power exists only in the form of amendment of the US constitution, requiring passage through both houses of Congress with two-thirds majorities, as well as ratification by three quarters of the states. A total of 27 amendments have been adopted since 1789. The first 10 of these constitute the 1791 ‘Bill of Rights’, and the 13th to 15th amendments put into effect the results of the 1861-65 civil war; that leaves 14 in 226 years - a pretty rare event.
But, just as parliamentary sovereignty in the UK has political limitations, so judicial supremacy in the USA has political limitations. It is well known that when FD Roosevelt responded to Scotus striking down New Deal legislation by attempting to expand the court and introduce a compulsory retirement age in order to ‘pack’ the court, one of the sitting judges changed sides in the next case - raising a constitutionality issue in order to ‘defang’ the political threat to the court.8
A general unwillingness to ‘go nuclear’ in confrontation between judiciary and executive, or between judiciary and Congress, is reflected not merely in the back-down (on both sides) in 1936-37, but also more recently.
For example, the US constitution allocates the power to declare war to the Congress, but the status of commander-in-chief of the armed forces to the president. For a considerable period of time, presidents have claimed that the powers of the commander-in-chief as such authorise them to deploy forces abroad (up to and including in actual combat) without a congressional declaration of war. After the Vietnam imbroglio, the two houses of Congress in 1973 passed the War Powers Resolution denouncing this doctrine except in the case of “a national emergency created by attack upon the United States, its territories or possessions, or its armed forces”. Presidents have consistently claimed that the resolution is unconstitutional, and have acted outside it; but, since no-one is prepared to go for a constitutional confrontation on the issue, its constitutionality remains untested in the courts.9
Avoiding political confrontation is also reflected in legal doctrines which restrict the sort of claims which can be brought before the courts to challenge the constitutionality of legislation or executive action. The ‘case or controversy’ doctrine asserts that the court will not issue advisory opinions or general rulings; the parties must have a real and individual material stake in the outcome.10 Equally, following the same logic, courts will often decide cases on the narrowest possible basis: they see their job as to decide the case before them, not to settle the underlying disagreement about the constitution if they do not have to. And judges often express a degree of ‘deference’ to legislative or executive actors’ supposed expertise in particular fields.11
These last are precisely reasons why the ruling of the Ninth Circuit Court of Appeals, discussed above, is narrow. But then they naturally imply that the high expectations created by liberal media outlets and by advocates of litigation as a left or anti-war tactic will pretty much invariably be disappointed. Compare Boumediene v Bush (2008), which establishes (by a five-four majority) the important principle that habeas corpus can reach detention in Guantanamo - with its ‘not with a bang, but a whimper’ practical outcome.12
Into this context comes Trump’s nomination of Neil Gorsuch to Scotus. This poses sharply related issues, because Gorsuch is not a simple traditional ‘originalist’ rightwinger. He wrote an Oxford University doctoral thesis passed in 2004, titled ‘The right to receive assistance in suicide and euthanasia, with particular reference to the law of the United States’ under the supervision of professor John Finnis.13 It is an argument against assisted suicide and euthanasia (which incidentally also argues against general decriminalisation of suicide), on the basis of sanctity-of-life arguments of the sort commonly used to support the criminalisation of abortion.
Finnis is not any old academic doctoral supervisor. He is a Catholic holding strongly ‘traditionalist’ views on a range of subjects; and most famous for his 1980 book, Natural law and natural rights,14 which set out to vindicate a version of the natural law theory of Thomas Aquinas (c1225-74): ‘neo-Thomism’. Finnis’s argument supports ‘Thomism’ against modern ‘legal positivism’ (the idea that the question what the law is can be wholly separated from arguments of morality about what the law ought to be).
It also supports neo-Thomism against liberal versions of ‘natural rights’ theory (like John Locke’s) which have been used to support, for example, the right of women to control their own bodies, or the rejection of prohibitions on consensual forms of sexual conduct. There is no coincidence in the fact that neo-Thomism opposes this sort of natural rights argument.
An unusually systematic and rigorous critique of the arguments of Finnis and similar authors on this front was published in 2008 by NC Bamforth and AJ Richards, which demonstrates that, in spite of the neo-Thomists’ claims that their arguments are independent of revealed religion, in reality they depend on smuggling in Catholic religious doctrine.15
Brought up as a Catholic, Gorsuch listed among his school activities in the yearbook of his (Jesuit-run, private) high school “Fascism Forever Club (founder and president)”. It seems to have been a bad-taste joke, albeit one which strongly points towards rightist political commitment in general. As an adult, he has become an Episcopalian (the US equivalent of Anglican), presumably in order to be able to worship together with his Anglican Brit wife.
This point is ‘political’ because Gorsuch has been touted as potentially the only Protestant Scotus justice.16 It is also material to how he could be expected to act as a judge, because there is, in fact, an inconsistency between Anglicanism and neo-Thomist natural law theory here. Anglicanism is founded on the subordination of the church to parliamentary statute. Neo-Thomist natural law theory, in contrast, implies a limit on the right of a parliament or congress to legislate against Catholic doctrine.
Gorsuch’s published work clearly implies that, in spite of his apparent Episcopalianism, we should expect him to act judicially as a neo-Thomist, not as an Anglican. He may even be completely unaware of the Anglican politico-legal theology of the subordination of the church to state sovereignty (there is, after all, an ‘Anglo-Catholic’ trend within English Anglicanism17).
Abortion is the notorious ‘big issue’ with US Christian ‘conservatives’ long committed to re-establishing back-street abortion manslaughter. But narrow interpretation of the establishment clause to allow legal discrimination against non-Christians would also follow logically from neo-Thomist arguments - as do a whole raft of other positions.
Aquinas, for example, argued that political authority was necessarily and naturally monarchical - a stronger claim for monarchy than was made by most monarchist theorists.18 It is then perhaps unsurprising that Finnis should argue for a narrow view of parliamentary sovereignty, and hence for the royal prerogative to apply to triggering article 50.19
Law, politics, morality
In the debates over Brexit and the travel ban, the nationalist-rightists complain that the unelected judges are usurping the right to make political decisions from the electorate. The judges, on the other hand, insist that they are not making political decisions, but merely legal ones.
The issue in relation to the Gorsuch nomination and his connection to neo-Thomism is, in fact, the same, but presented in a different form. It raises the question whether the separation of law from religious moral judgments is desirable or, indeed, possible.
Before saying anything about the substance of the issue, it is necessary to make two preliminary points. The first is that the right, which is now complaining that the decisions of the courts against its views are political, will, if it gets court decisions compliant with its view, assert that these are purely legal and not political at all. So rightwing commentators’ use of the point is just rhetorical spin.
The second is that, when judges explicitly assert that what they are deciding is not political at all, this usually means that the they have actually anxiously considered the political implications of the decision. They merely do not wish to admit to political motivations in front of media and political attention.
In contrast, when the media are not paying attention, judges will commonly make broad policy and substantive ‘justice’ claims. Thus, for a single example, in Tiensia v Vision Enterprises (2010) the Court of Appeal by a majority drove a coach and horses through the provisions of the Housing Act 2004 for protection of tenant deposits, on the ground that the sanction provided by the act was unfair to landlords, and hence ‘must’ be interpreted in a way which would make it never operate in practice.20
Within the framework of these points, what can be said is, first, there are such things as legal rules which are morally neutral. But there is an enormous degree of overlap between ‘is’ and ‘ought’ in law. The reasons for rejecting neo-Thomism are, then, not that legal positivism (that societies can make effective legal rules completely arbitrarily) is true, but rather that the concrete moral value claims of neo-Thomism are false.
Second, there is such a thing as rules of law - or, more exactly, types of judicial disputes - which are in principle not immediately tinged with political choices for the whole society. But again there is enormous overlap: as soon as we move from the individual disputes to the rules to be applied to them, politics tends to become implicated.
To take the first point first, and give a concrete example. Should the rule of the road require us to drive on the left or on the right? There is a moral need that there should be some rule, but it is completely arbitrary which rule should be adopted. In this sense, the concrete legal rule in itself is morally neutral; and there are very numerous similar morally neutral rules. In contrast, the rule against killing other people (subject to various exceptions) is pretty clearly a moral as well as a legal rule.
The problem arises as soon as we are forced to decide on the borders of a rule. An example given by legal positivist theorist HLA Hart is a rule banning ‘vehicles’ in a park.21 Is a kiddy-car banned? And then, if a kiddy-car is not banned, is a child-sized motorised go-kart? Hart’s view is that, when confronted with an issue like this, the judges act as subsidiary legislators - in which case what they do is plainly political, as the rightwingers argue. The ‘natural law’ theorists, and RM Dworkin,22 argue that judges in this situation are forced to ask what the purpose of the rule is in order to establish its scope; and this process inevitably becomes one of moral judgment.
The idea that the judges are subsidiary legislators is violently artificial, precisely because the interpretive activity is so commonplace. Indeed, we do it every day in ordinary conversation, to decode from the context which among several possible meanings of a word is intended. ‘Law and economics’ theorist and US federal judge RA Posner argues, in my view rightly, that there is no such thing as an ‘ordinary, natural meaning’ of words without this interpretive process.23
It is, then, impossible to establish meanings fully independent of the purposes of rules; and moral claims inevitably form part of the interpretive process.
The problem with neo-Thomism is that itsmoral claims are false. To take one of the obvious and most controversial cases: abortion. The argument for the sanctity of life is made on the basis of natural law reasonings which, if carefully analysed, turn out to depend on the will of ‘god, the creator’, as read off from his (sic) creation, or the teleological good for humans as so read off. But we now know that abortion takes place without human intervention under conditions of serious malnutrition.24 That is, supposing for the sake of argument that there was a ‘god, the creator’, his creation is such that the survival of the pregnant female is preferred to that of the foetus. The strong sanctity-of-life claim against abortion is therefore untenable.
Similar objections can be made to a great deal of the neo-Thomist reasoning. Seriously pursuing such points leads to the conclusion reached (more politely) by Bamforth and Richards, that this theory is nothing but apologetics for gender bias and for clericalism.
Turning to the second point. Suppose Adam and Bill are involved in a motor accident involving no-one else and dispute who is to blame; or that Clare and Dot have a boundary dispute about their respective gardens. This sort of litigation is, on its face, politically neutral.
It turns out, however, that the rules applied even to such cases are anything but apolitical. The judiciary, the bar and the insurance companies cling to a set of rules for dealing with motor accidents, which are dilatory and expensive - but lucrative for lawyers and incidentally protect the interests of insurance companies in accident litigation outside the road traffic context.25 Parliament in 2002 seriously damaged the rules for deciding boundary disputes in the interests of saving banks the small cost of inspecting the property before granting a mortgage.26 These are both political choices (albeit ones carried on almost entirely behind the backs of the legislators, let alone the electorate).
... and party politics
How are these grand-theoretical points about law, politics and morality relevant to what is going on in the party politics of Brexit and of ‘Trumpism’? The answer is that they help to explain why the tactic of left litigation fails - both as a way of jumping to a solution, thus avoiding the need to rebuild an independent labour movement at the grassroots; and as a way of constructing a ‘broad democratic alliance’ with the liberals against the ‘Trumpists’ or the Brexiteers considered as forms of the far right.
Judicial action in itself is inherently implicated in politics. Moreover, at the end of the day, judges are paid by taxes raised by state coercion and their judgments on any matter will only take effect if implemented by bailiffs, police, and in the last analysis armed forces (as, for example, in Waco, Texas in 1993). Hence, judges seek as far as possible to avoid large-scale political confrontations with other branches of the state.
The consequence is that leftist litigation as an alternative to independent mobilisation will inevitably end ‘not with a bang, but a whimper.’ If, on the other hand, litigation takes place in the context of a real mass mobilisation (not meaning a mere small-scale street protest movement), then the right wing may well back off through the litigation.
Equally, suppose that the litigation is defined by an alliance between a section of big capital and the left, in the name of liberal principles, against backward sections of the petty bourgeoisie and working class, which are themselves aligned to another section of capital. This is true of both Miller and the travel ban litigation (just as it was true of the Boston ‘bussing’ litigation in the 1970s27). The result is that the litigation serves to harden the right-populist, cross-class alliance and reduce the possibility of building effectively against it.
It may be that Trump will be brought down in the near future, as his national security advisor, Michael Flynn, has been. The fall of Flynn involved not litigation, but threats of prosecution, under an ancient (1799) act of Congress. But, if Trump is in fact brought down by the same scandal, it will not be leftwing litigation that brings down Trump, but the creation of a cross-party and inter-bureaucratic political coalition around the issue of aggression against Russia. And the result, if so, will be president Pence and a new and rapid war drive; leaving the left and the workers’ movement overall weaker.
The use of litigation in the name of a ‘broad democratic alliance’ and/or ‘anti-fascism’ will then have contributed to the unfolding disaster.
1. A secondary point might have been to delay the need to make any firm decisions until after the US presidential election. The victory of Trump has meant support for Brexit; a Clinton victory would probably have forced the British government to try to find some way out from the referendum decision.
3. Sienkiewicz (estate of Costello) v Greif (UK) Ltd (2011) UKSC 10.
5. William Safire offered a longer history for Potus: ‘On language; Potus and Flotus’ New York Times October 12 1997.
6. A critique of a less extreme variant of this view is offered in AM Koppelman, ‘Phony originalism and the establishment clause’ (2011) Northwestern Law Faculty Working Papers No3 (http://scholarlycommons.law.northwestern.edu/facultyworkingpapers/3).
7. ‘Donald Trump considering “brand new” immigration order’ The Guardian February 11.
8. Significance debated: D Ho and KM Quinn, ‘Did a switch in time save nine’ J Leg Analysis Vol 2 (2010), pp69-113. One of the very common references, this one in an interesting rightist post: https://mises.org/blog/congress-should-pack-supreme-court (Nov 23 2016).
9. Eg, KJ McHale, ‘The war powers resolution: intent, implementation and impact (1993): www.dtic.mil/get-tr-doc/pdf?AD=ADA276778; TS Boylan, GA Phelps, ‘The war powers resolution: a rationale for Congressional inaction’ Parameters spring 2001, pp109-24.
10 There is a convenient outline summary in Wikipedia: https://en.wikipedia.org/wiki/Case_or_Controversy_Clause.
11. One example from the very extensive discussion, this time in relation to the ‘war on terror’, is in KL Scheppele, ‘The new judicial deference’ Boston U LR Vol 92 (2012), pp89-170.
12. Wikipedia (https://en.wikipedia.org/wiki/Boumediene_v._Bush) provides a convenient summary of both the case and the subsequent outcomes. Guantanamo Bay detention has survived Obama in spite of his campaign promises: The Guardian January 18 2017. Only the application of the Habeas Corpus Act 1679, criminalising such activities on penalty of forfeiture of all property and disqualification for life from public office (repealed in English law), could really hope to end such practices.
13. The thesis has been published in an edited form as The future of assisted suicide and euthanasia (Princeton 2006).
14. J Finnis Natural law and natural rights New York 1980.
15. NC Bamforth and AJ Richards Patriarchal religion, sexuality and gender Cambridge UP.
16 There have been 86,500 hits for ‘Gorsuch Protestant’ on Google: eg, Christianity Today January 31 (www.christianitytoday.com/gleanings/2017/january/trump-nominates-neil-gorsuch-supreme-court.html).
17 A convenient if debatable short summary is at https://en.wikipedia.org/wiki/Anglo-Catholicism.
18 De regno, ad regem Cypri: http://dhspriory.org/thomas/DeRegno.htm#3; ‘Thomas Aquinas: political philosophy’: www.iep.utm.edu/aqui-pol; Stanford Encyclopedia of Philosophy, ‘Medieval political philosophy’, chapter 9: https://plato.stanford.edu/entries/medieval-political/#ThoAqu.
19 Eg, ‘Terminating treaty-based UK rights’ (October 2016): https://ukconstitutionallaw.org/2016/10/26/john-finnis-terminating-treaty-based-uk-rights; and several subsequent interventions.
20. EWCA (2010) Civ 1224.
21. HLA Hart The concept of law Clarendon 1961, chapter 7.
22. RM Dworkin Law’s empire Fontana 1986, passim.
23. RA Posner Theproblems of jurisprudence Harvard UP 1990, chapter 1.
24. Eg, J Neela and L Raman, ‘The relationship between maternal nutritional status and spontaneous abortion’: www.ncbi.nlm.nih.gov/pubmed/9069700.
25. See the discussion in P Cane and P Atiyah Accidents, compensation and the law Cambridge 2013.
26. Land Registration Act, sections 97-98 and schedule 6; Zarb v Parry (2011) EWCA Civ 1306.
27. The convenient summary account on Wikipedia is at https://en.wikipedia.org/wiki/Boston_busing_desegregation. The episode was disastrous for the US ‘New communist movement’.