October 16, 2018 / 9:01 PM / 10 months ago

The attorney general attacks ‘judicial encroachment.’ Who’s his real audience?

(Reuters) - U.S. Attorney General Jeff Sessions gave a fiery speech Monday night at the Heritage Foundation, the conservative think tank linked to President Trump’s rapid-fire appointment of conservative federal judges.

Sessions decried what he called “judicial encroachment” – courts intruding, by his lights, on the policy-making prerogatives of the executive branch. The AG called out, albeit without using their names, federal trial judges who have authorized discovery on the Trump administration’s motives for rescinding the Obama-era program deferring deportation of some migrants who arrived in the U.S. as children; on the prohibition against transgender people serving in the military; on ending Temporary Protected Status in the U.S. for citizens of some disaster-stricken countries; and on the addition of a question about citizenship to the 2020 census questionnaire.

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“In almost all of these cases, motive is irrelevant,” Sessions said. “Those deliberations are the constitutional prerogative of the executive branch, and they deserve the same respect we afford to judges’ private drafts of opinions or conversations with law clerks. What matters for legal purposes is the judge’s final product – the legal ruling. So, too, with most executive branch decisions. But an increasing number of judges are ignoring these boundaries and view themselves as something akin to roving inspectors general for the entire executive branch.”

The Justice Department did not immediately respond to a request for comment sent through its website.

Voicing grievances against judges who balk at Trump policies is not a new theme for Sessions, who reiterated his call for an end to nationwide injunctions in the Heritage Foundation speech on Monday night. Nor, for that matter, is it unheard of for a presidential administration to complain about activist judges. Cornell law professor Joshua Chafetz reminded me that just about every presidential administration since Richard Nixon’s has complained about so-called activist judges. Sessions’ speech, Chafetz said, “was aggressive but not unusual in the longer course of American history,” in which executive branch officials have constantly tussled with the courts about limits on judicial power.

The AG’s speech might even be considered “thoughtful,” said University of Pittsburgh law professor Arthur Hellman, in that Sessions linked discovery rulings in several different cases to posit a pattern of judicial skepticism about the administration’s policy-making. (Hellman said the flaw in the AG’s talk was Sessions’ failure to account for exceptions to the general rule that courts don’t second-guess policy deliberations; in the examples Sessions cited, judges have invoked allegations that the Trump administration was motivated by bad faith or racial animus.) It’s important, Hellman said, that Sessions stopped short of accusing judges of injecting political views into their deliberations and simply said that if courts were to use their offices to advance their own policy objectives, “the American people will soon view them as political actors (and) that would be a great loss to our heritage of law.”

Both Chafetz and Hellman said what’s really interesting about the attorney general’s speech isn’t so much the complaint about judicial activism but the timing of that complaint. Sessions, a longtime U.S. senator before he was appointed attorney general, surely knows the power of a well-timed speech.

Chafetz said the AG may simply have been reminding conservative stalwarts, in advance of the midterm congressional elections, why it’s important to continue to stock the court with judges who will beat back judicial activism. (Sessions explicitly acknowledged the Heritage Foundation’s long-running commitment to a conservative judiciary.) Republicans, Chafetz said, have consistently cited the courts as a priority. By talking about what has been called the “judicial resistance” to Trump policies, the AG may have been trying to motivate Republicans to vote in November.

Or, Hellman suggested, he may have been "trying to explain to the U.S. Supreme Court - and to the larger legal world - why the Justice Department would ask the court to intervene in trial court discovery disputes, the sort of thing the court doesn't usually get involved in." It’s certainly notable, Hellman said, that Sessions delivered his speech even as the Supreme Court is deliberating a Justice Department emergency petition to stay the depositions of Commerce Secretary Wilbur Ross and Acting Assistant AG John Gore in litigation over the 2020 census. U.S. District Judge Jesse Furman authorized the depositions after concluding that New York State and other challengers to the addition of a citizenship question raised credible allegations that the administration acted in bad faith in espousing its rationale for the question. Justice Ruth Bader Ginsburg issued a temporary stay so both sides could brief the issue; those briefs were submitted last week.

That’s why it’s notable that Sessions told the Heritage Foundation that DOJ will fight discovery battles in policy challenges all the way to the Supreme Court. (In addition to the census discovery dispute, DOJ previously went to the Supreme Court to block document production in one of the DACA rescission cases.) “These are not just minor discovery disputes,” the AG said. “These are fundamental questions about the structure of our government. These are fundamental questions about power. If the judiciary can subject the executive branch to new, disruptive and invasive reviews, the power of the judiciary enhanced while the power of the executive has been diminished. That is a tilt we cannot abide.”

Similarly, federal appellate courts are in the midst of reviewing trial court rulings on DACA rescission, the transgender troop ban and, more broadly, nationwide injunctions. Obviously, the Justice Department is writing briefs to address the specifics of all of these cases. But Hellman said Sessions’ speech weaves those storylines into a bigger tale of judicial resistance.

And telling his story at the Heritage Foundation just about guarantees it will be heard by conservative judges. I doubt it’s a coincidence that when the AG thanked the foundation near the top of his speech for championing conservative ideals, he said President Trump’s Supreme Court appointees, Justices Neil Gorsuch and Brett Kavanaugh, are the culmination of the foundation’s hard work. Now it’s time, the AG’s speech implied, for those justices to stand up against “ideological or political” judicial interference with the ideals that brought them to the high court.

If that’s not a clarion call, I don’t know what is.

About the Author

This story has been updated. An earlier version incorrectly paraphrased a comment by Hellman about the timing of the attorney general's speech.

The views expressed in this article are not those of Reuters News.

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