When Justice is Pushed to the Fringe

From Congress to the courts, the breakdown in reason can put everyone in danger

Trump followers at the “Save America” rally in Youngstown, Ohio, on Sept. 17, 2022. (Photo by Jeff Swensen/Getty Images)

In a Trump rally on Saturday in Youngstown, Ohio, the cult leader spoke in strange, lullaby tones—when he wasn’t talking again and again about the death penalty and executing people—while his followers extended their arms like in a Nazi salute with their index fingers raised. I guess we can call that the Trump salute.

In Martha’s Vineyard this weekend, local volunteers gave food and clothes and other support to some 50 legal asylum seekers, unknowingly exploited as human pawns, flown to the liberal enclave by Florida Gov. Ron DeSantis with taxpayer dollars. In 2022, this cynical publicity stunt to own the libs is seen by some as the path to the White House.

In South Carolina last week, Sen. Lindsey Graham upped the ante on women’s rights and reproductive health by urging a national abortion ban, despite the fact that it has no chance of passing in Congress and is opposed by a significant majority of the public.

In a sane world, we would talk about a radical fringe that is strange and extreme, but nothing too serious to worry about. America has always included fringe movements that reveal a troubled, racist, often violent underbelly determined to destroy the nation’s social and moral order. Such strains have been visible in the GOP for decades.

But until now, this radicalized minority was not empowered and fully embraced by one of the country’s two major parties, egged on by the sadistic man who formerly occupied the White House, or provided examples by “leaders” bent on mocking the will of the people, ignoring the rule of law and dismantling democracy.

Nor could a radicalized fringe cross their fingers that a significant subsection of the federal courts may find ways to look the other way or jimmy up legal rulings that strengthen their party’s leader—even if he stole classified documents that breach national security and likely endanger intelligence officers around the world who are risking their own lives to keep America safe.

By the last week Trump was in office, we could count 816 active judges appointed by him: three of the nine Supreme Court justices, 30 percent of the active judges serving in 13 regional appeals courts and 28 percent of the active judges serving in 91 district courts. That’s more than Barack Obama appointed to the courts during his eight years as president.

Supreme Court Chief Justice John Roberts frequently touts an independent judiciary—“We do not have Obama judges or Trump judges, Bush judges or Clinton judges,” he said in 2018—and recently criticized those who doubt his court’s legitimacy.

But it’s worth recalling what Trump spouted in 2016: “If it’s my judges, you know how they’re gonna decide.” When they didn’t side with him and his regime, he was quick to complain.

One 2020 study found that Trump-appointed judges were the most conservative of the past 10 presidents, especially on issues of civil rights, civil liberties, labor and economic regulations. That same study asserted that the Trump appointees were more pro-defendant and more liberal on criminal justice matters, likely as a result of their skepticism toward federal law enforcement.

Add to this another 2020 study, which examined Trump appeals court judges and found that—in contrast to those who had come before—these judges are younger, more political, more ideological, less experienced in private practice, less moderate, more likely to be connected to the Federalist Society. They are also “more likely to have spent their time pushing conservative policies on behalf of conservative politicians.”

Cue the arrival of Judge Aileen Cannon—whose ruling to insert a special master and slow down the criminal investigation of Trump espionage, improper handling of federal documents, and obstruction of justice by illegally taking classified documents and then refusing to return them—which endangers national security. Her Trump-serving responses to the Department of Justice’s case, particularly her concern that the investigation could cause Trump “reputational harm” and he may be entitled to executive privilege, does not just raise doubts about her competence—it flashes a red light of corruption.

Don’t just take my view on this. Consider the words of Harvard legal scholar Lawrence Tribe: “Cannon’s order will go down as part of the judicial anticannon—the body of decisions, like Dred Scott or Korematsu, that lawyers use for generations to teach students how NOT to wield the judicial power.”

Added constitutional lawyer Neal Katyal: “Executive Privilege isn't some post-presidential privilege that allows Presidents to keep documents after they leave office…Frankly, any of my first year law students would have written a better opinion.”

Tribe and Katyal had plenty of company, including from some unexpected sources. Former Trump loyalist and AG Bill Barr—the man who used to be Trump’s Roy Cohn—called the special master “a red herring” and “a waste of time.”

Barr had more to say—on Fox News, no less. “I can’t think of a legitimate reason why they should have been…taken out of the government, away from the government if they are classified,” Barr said. “What people are missing, all the other documents taken, even if they claim to be executive privilege, either belong to the government because they are government records, even if they are classified, even if they are subject to executive privilege, they still belong to the government and go to the [National Archives].”

A member of the Federalist Society since 2005, Cannon is not the only Trump-appointed judge who has engaged in questionable decisions. As Politico noted, a Trump judge in Arkansas ruled earlier this year that “the Voting Rights Act can’t be enforced by private individuals or groups, despite more than five decades of such litigation.” In another case in May, a Trump-appointed judge in Florida canceled scheduled arguments involving the federal mandate for mask use on airplanes and other transportation, then struck down the requirement herself.

But Cannon’s rulings particularly illuminate the danger of an ideological judge who seems determined to place the man who appointed her above the law and push back at the credibility of the Justice Department.

Cannon’s acceptance last week of federal judge Raymond Dearie as the special master, proposed by the Trump team and agreed to by the DOJ, will soon lead to the 11th Circuit Court; the DOJ on Friday appealed her temporary stay and refusal to exclude from the special master’s review the 100 classified documents that prosecutors have deemed are of particular gravity and top secret, insisting that a delay in their criminal investigation may cause “irreparable harm.”

Can we trust what will happen once the appeal is addressed by the 11th Circuit? While that case will be considered by three randomly selected judges, six of the 11 active judges were appointed by Trump.

Maybe they will find that Cannon overstepped her bounds. But in a time when the fringe has gone increasingly mainstream, we are forced to doubt whether justice will be served. And it’s not as if a further appeal can give confidence of a fair hearing. Next up after the 11th Circuit? The US Supreme Court.

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