On ‘Legitimacy’ in Our Courts
Terry H. Schwadron
Sept. 17, 2022
Chief Justice John G. Roberts Jr. felt obligated this week to speak publicly to defend the “legitimacy” of the Supreme Court, since poll after poll finds the respect for the abruptly turned conservative majority to be increasingly out of step with precedents, partisan independence and perceived American values.
Roberts, speaking in answer to questions at an open forum for lawyers, defended the court by arguing that case decisions should be based on law, not on public opinion. Specifically, he referenced the outward antipathy for the Dobbs decision undercutting 50 years of legal abortion in the country.
But we are seeing patterns in court decisions that increasingly are supporting the idea that our judges and our courts, up to the Supreme Court, are leaning way to the political Right not as the result of new law. Rather, it is happening simply as the result of recent conservative additions to the bench that are creating the partisan tilt — something pointed out in competing public remarks by Justice Elena Kagan also this week.
The same is true up and down the federal bench — a goal that Senate Minority Leader Mitch McConnell (R-Ky.), the Federalist Society and Right-leaning senators and politicians have been demanding for years.
It is in this context that we received the news from Florida Federal District Judge Aileen Cannon’s flawed legal decision insisting that a special master step in to determine, among other things, whether documents recovered from Donald Trump’s palatial Mar-a-Lago resort home actually included classified documents — even after photos of the classified markings on document covers were made public. In addition, she ordered review of whether any of them should be exempted from FBI and Justice investigations as Trump’s personal property protected by executive privilege.
As with her earlier ruling, the bulk of her 10-page decision leans on non-legal considerations like reputational damage to Trump, who appointed her and who was confirmed after he lost reelection, rather than to black letter law or Justice investigative practice, particularly where national security sources could be involved.
Where’s Equality Under the Law?
When people talk about the “legitimacy” of courts and the legal system, it is exactly this kind of political bias and interference not based on law that is the cause for alarm.
The legitimacy question is all about fairness, equal treatment under the law. No one believes that anyone but Donald Trump would be facing serious criminal charges for removing, holding and hiding classified documents.
But this decision is making us believe anew that there is one law for Americans and another for Donald Trump — if he brings his legal complaints before a judge whom he has appointed.
There is no way to read Cannon’s opinion, which is being appealed by Justice, as anything but extraordinary non-legal intervention to help Trump to delay, dismiss or deflect from the charges. Further, the idea that the intelligence community and the FBI cannot determine what is a classified document or that Trump had the personal right to remove such documents from protected viewing spaces is outrageous.
There certainly is no written law here that permits this judge to second-guess the emerging facts of an investigation. And if there is room to question the “evidence,” it would come later in a criminal process, after there is an indictment or criminal charge.
Specifically, federal prosecutors had asked that any special master review not include the 100 classified documents the FBI found among the confiscated materials from the search. They argued delaying investigators’ access to those documents could pose national security risks to sources.
The Washington Post, for example, had reported that the seized material included information on a foreign nation’s nuclear capabilities and other sensitive documents so closely held that only a small circle of top government officials is permitted to access them.
You Know the Answer
This case will resolve eventually. The special master is agreed upon and has a court-ordered deadline, conveniently after the midterm elections. The master, a former federal chief judge in New York’s eastern district, has been told to look at the classified trove of documents first before turning to 11,000 others.
The point is, though, that left to normal judicial processes, there would be no intervention in the case at this point, and that the investigation would continue with whatever result will happen without such delay or introduction of legal confusion where there is none. Trump can’t own classified documents, because he never owned them; Trump can’t exert executive privilege, a hazy concept anyway, because he is not in the White House, and these are not communications documents he originated.
The case here is about politics and perception, not about law. Trump is very able at making the case that he is a victim of repeated, continuing prosecution efforts. So are prosecutors adept at arguing the need for various investigations arising from the Trump actions that prompted them in the first place.
None of that is law.
The spate of decisions at the Supreme Court level that have favored freedom of religion clauses over all other competing freedoms is not by accident. The pattern of decisions that are anti-labor or that favor voter-restriction moves and gerrymander by Republican-majority states over civil rights concerns are not happenstance.
As my mother would say: Justice Roberts, if you must ask why the legitimacy of the Supreme Court and the federal bench is under attack, you already know the answer.