During her confirmation hearing to become a federal judge in July 2020, Aileen Cannon, like virtually every GOP nominee, described herself as an “originalist.” Originalists claim to be paragons of judicial restraint, devoted to limiting the scope of their rulings, thereby not veering into the role assigned to the democratically elected branches of government to make laws and decide political and social policy. But Judge Cannon’s recent ruling in Donald Trump’s case against the United States government—ordering the partial shutdown of an investigation into the purloining of national security materials by the former president who appointed her—demonstrates that conservative jurisprudence has devolved into a brazen power grab, at direct odds with our democratic system of government, and the constitutional separation of powers.
Cannon's order may ultimately be voided; but the fact that she issued it will remain as a stark warning about just how far Trump judges and other similarly minded GOP nominees—hundreds of whom have been installed, at all levels of the federal judiciary—are willing to take the very judicial “activism” they claim to abhor to serve radically anti-democratic goals.
In recent decades, GOP judges have (i) selected a president, (ii) remade the electoral process, including by gutting campaign finance laws, as well as the heart of the Voting Rights Act; and (iii) trashed a constitutional fundamental right generations of Americans relied upon.
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Now, avowed originalist Judge Cannon, installed during the waning days of the Trump administration, has engaged in one of the most audacious acts of right wing judicial overreach to date: Directly interfering with the current president’s performance of his core, constitutionally assigned, duties to protect national security and enforce the criminal laws enacted by Congress. It is hard to imagine a more brazen act of judicial supremacy.
Cannon's ruling is a very good subject for legal realist analysis. Legal realism was a theory of judicial decision-making developed in the first half of the 20th Century, and initially associated with liberal scholars, who posited that judicial rulings purportedly grounded on abstract legal principles are inevitably actually products of the political and normative views of the judges who issue them.
While not an exponent of realism, Felix Frankfurter, a Harvard Law School professor, and later appointed to the Supreme Court by Franklin Delano Roosevelt, shared realists’ skepticism about the often unacknowledged motives underlying judicial decisions.
Frankfurter had been perhaps the leading liberal lawyer and scholar of his generation. He courageously led the unsuccessful effort to obtain due process for alleged anarchist terrorists Sacco and Vanzetti during the height of the racially tinged Red Scare that overtook the country during and following World War I. But after joining the Supreme Court in 1939, and initially voting to uphold FDR’s New Deal reforms as enacted by Congress, Frankfurter became an increasingly squeaky wheel on a liberal post-World War II Supreme Court–most notably where issues of school desegregation were concerned.
Frankfurter’s view was that judges must hesitate to move into the purview of the political branches, and therefore he spent much of his career on the bench seeking to police what he viewed as the danger of judicial overreach.
Cannon’s ruling exemplifies just that danger. A realist would say Cannon apparently issued her ruling for career reasons, and that her audience is a future GOP president who might elevate her to a higher court.
In this regard, Cannon appears to be following the strategy employed by some Trump appointees to the Supreme Court, including Neil Gorsuch, who famously argued, in a lower court dissent, that a “textual” reading of a federal safety law permitted an employer to fire a trucker for leaving his damaged trailer during subzero weather to avoid dying of hypothermia. Gorsuch’s dissent was absurdly cruel and nonsensical, but it sure got him noticed by Trump’s judge pickers.
Similarly, Cannon is likely betting that—even though her opinion is being rightfully mocked as sloppy and at odds with the law—it will please, and ensure she is noticed favorably by, those who matter to an ambitious Trump judge: those who select appellate court nominees in a future GOP administration.
There is a dark irony to this development, because concerns about the risk of judicial overreach were also a purported foundation of the “original understanding” theory initially advocated by conservative judicial luminaries Robert Bork and Antonin Scalia. And, purportedly, adopted by Judge Cannon herself.
In an odd parallel with realists (who favored empirical approaches to judicial decision-making), originalists purported to ground their rulings on historically driven inquiries into the prevailing “understanding” of a given law or constitutional provision at the time of its enactment. Originalists claimed that their historical approach to adjudication would limit the risk of judicial overreach, by preventing judges from inserting their own normative and political views in their decisions, thereby leaving it to voters and the officials they elect to do heavy lifting of governance and public policy, as they should. Realists are skeptical of such claims, and in the case of self-described originalists on the right, such skepticism has proven to be merited.
Cannon’s claim to be an originalist goes to show how absurdly unmoored supposed originalists, like Cannon and Alito (who was once nicknamed Scalito) have become from the original rationale for originalism. They’re now brazen opportunists, willing to use the thinnest of analytic and factual bases to reach the results they want.
In Alito’s case, his plain goal is to impose reactionary social and political policies on the entire nation, voters’ preferences be darned. In Cannon’s case, the likely goal is simply personal aggrandizement. But, in both cases, the damage to the democratic system, and to the separation of powers that is fundamental to our constitutional system of government, is equally grave.
Frankfurter would be shocked to see how the principle of judicial restraint he hewed to—at the cost of being regularly criticized by his past liberal allies—has been betrayed by right wingers who disingenuously employ rhetoric of restraint to engage in judicial overreach.
It is hard to believe, however, that Antonin Scalia, the patron saint of all right wing originalists, would share the same unhappiness. Scalia was never a particularly principled adherent to the judicial philosophy he championed. He had a curious tendency to consistently “find” that the original understanding of constitutional provisions matched up exactly with his own favored right wing social policies. Scalia’s most outrageous departure from his own originalist theory was in the Bush v. Gore case, where he and four other right wing justices on the Supreme Court employed the 14th Amendment’s Equal Protection Clause—which Scalia and others had devoted decades to undermining—as a basis to install George W. Bush in the White House (don’t ask me to explain how). The Court’s “reasoning” was so embarrassingly flimsy that the majority opinion expressly warned against lower courts relying upon it in the future.
Before issuing the decision effectively declaring Bush the winner of the election, the Court ordered a halt to the recount of votes in the state of Florida. Scalia, in a concurrence to that earlier decision, observed that it was important to end the counting of votes, because it risked “casting a cloud upon what [Bush] claims to be the legitimacy of his election.” Put otherwise, the recount risked demonstrating that Gore received more votes.
In her Trump ruling, Cannon curiously echoed Scalia’s reasoning, stating that she was blocking the criminal investigation of Donald Trump in part because of the risk that a review of the evidence could lead to an indictment that could inflict grave “reputational harm” to the former president. Of course it is true that a meritless indictment does great damage to the defendant (and I, as a lawyer, have proudly sought to vindicate the rights of wrongfully accused persons). But assuming that the use of evidence obtained pursuant to a properly issued search warrant will lead to a wrongful indictment, an argument concerned about reputational harm to Trump—like Scalia’s assumption that counting duly cast votes would undermine the “legitimacy” of Bush’s claim to the presidency—is not only absurd, but more than a little disturbing.
Both judicial remarks are emblematic of the now routine overreach that has come to permeate the right wing judiciary, at grave cost to our nation, and its constitutional and democratic order. There is every reason to be concerned that the worst is yet to come.
