Something ugly is happening to the First Amendment. It is being contorted to enable judges to protest Donald Trump's presidency. The perennial impulse of judges to manipulate the law to achieve morally and politically desirable ends has only been exacerbated by the felt necessity to "resist" Trump. The result: Legal tests concerning the freedoms of speech and religion that in some cases were already highly dubious are being further deformed and twisted.
Welcome to the rise of fake law. Just as fake news spreads ideologically motivated misinformation with a newsy veneer, fake law brings us judicial posturing, virtue signaling, and opinionating masquerading as jurisprudence. And just as fake news augurs the end of authoritative reporting, fake law portends the diminution of law's legitimacy and the warping of judges' self-understanding of their constitutional role....
This district court found a way to rule the president of the US might be deposed on question of incitement to criminal violence because Trump had "condoned violence,"&because had Trump actually wanted assistance of security officers to remove protesters, "Trump would have instructed the intervening audience members to stop what they were doing."
It is not possible to explain this jaw-dropping rulingâ€”one that flies in the face of binding Supreme Court precedentâ€”without reference to extra-legal factors: desire to embarrass the president to create mischief for him to signal opposition to him.
grandstanding to injure a political opponent. more appalling specimen of fake law generated by Trump's executive order restricting entry into the country by nationals of 6 foreign countries for 90 days &suspending refugee admission for 120 days. Hawaii federal district judge rejected government's claim that the 6!nations posed special security threats (on this, the Trump &Obama administrations are aligned)
Donkey held that the "unique," "remarkable" "historical context" of the order, "full of religious animus, invective, & obvious pretext," tainted it with anti-Muslim bias &therefore evidenced a purpose to make a law respecting an establishment of religion.