December 22, 2020

Four years ago, the question was whether our democracy could withstand the presidency of an amoral populist who had no respect for our country’s ideals, a would-be demagogue who rode into office on a wave of bigotry and hatred.    

We could not count on the executive branch to do anything but follow the randomly vindictive orders of the president. The legislative branch at the time, was controlled in both houses by Trump’s cowardly enablers, apparently willing to fall into lockstep. What about the judiciary? 

The framers of our constitution took pains to establish the judiciary as an independent and separate branch of government.  The federal judiciary would be populated with judges of good reputation and given lifetime tenure whose compensation “shall not be diminished during their Continuance in Office.”  Both Hamilton (Federalist Papers No. 78) and Madison (Federalist Papers No 47) foresaw an independent judiciary as necessary to protect individual liberties against overreaching by the other two branches. 

The silver lining of the last four years has been the integrity of the legal system and its stand against the worst abuses of executive power.   At nearly every turn, the federal courts have enjoined Trump’s most egregious policies and executive orders.  The Washington Post, in March of 2019 recapped the Trump admini-stration’s losing record: 

 Federal judges have ruled against the Trump administration at least 63 times over the past two years, an extraordinary record of legal defeat that has stymied large parts of the president’s agenda on the environment, immigration and other matters. 
In case after case, judges have rebuked Trump officials for failing to follow the most basic rules of governance for shifting policy, including providing legitimate explanations supported by facts and, where required, public input. 

 What little success Trump enjoyed was the result of the talented legal staff already in place when he took office. Many members of the Office of Legal Counsel agreed to continue their employment under the Trump administration in the belief that they could protect the country from Trump’s worst impulses. One such staff member, Erica Newland, regretted that decision, as she wrote in the New York Times: 

“I never harbored delusions about a Trump presidency. Mr. Trump readily volun-teered that his agenda was to disassemble our democracy, but I made a choice to stay at the Justice Department — home to some of the country’s finest lawyers — for as long as I could bear it. I believed that I could better serve our country by pushing back from within than by keeping my hands clean. But I have come to reconsider that decision.

My job was to tailor the administration’s executive actions to make them lawful — in narrowing them, I could also make them less destructive. I remained committed to trying to uphold my oath even as the president refused to uphold his. 

But there was a trade-off: We attorneys diminished the immediate harmful impacts of President Trump’s executive orders — but we also made them more palatable to the courts."

Then came the election and its aftermath. Dozens of lawsuits filed by Trump challenging his loss to Biden have been dismissed by both federal and state judges. the Supreme Court, with three Trump Appointees, have in two cases summarily refused to hear Trump’s legal actions. Although the Supreme Court’s denials were made without comment, many of the appellate court and state judges have bluntly criticized the legal actions as being unsupported by any evidence or cognizable legal theory.   

Trump has blamed his losses on judges he considers to be liberal. In a highly unusual public rebuke, Chief Justice John Roberts took Trump to task for complaining about an “Obama Judge” who had ruled against him: 

 “We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them. That independent judiciary is something we should all be thankful for.” 

Judges who have stood up for democracy and the rule of law do not consider themselves heroes; they merely did their job as required by the oath of office. While we will disagree, on policy grounds, with some decisions of the federal judiciary, when it came to protection of our democracy, this third branch of government stood tall, and for this, as Justice Roberts noted, we should all be thankful. 

Ed Koons, AADC President