Undaunted

Two judges’ inspirational rulings

Despite the MAGA Supreme Court justices’ unending display of partisan hackery, we should remember that superb lower court judges labor daily to protect our Constitution against an authoritarian, lawless regime. Two judges in particular stood out this week.

Photo by Jon Tyson

First, “Six months after 12 families, including Kentuckians, sued the federal government over library book removals at Fort Campbell and other Department of Defense schools, a federal judge ruled Monday that the books must be restored,” the Kentucky Lantern reported. “U.S. District Judge Patricia Tolliver Giles in the Eastern District of Virginia also ruled that the defendants — Secretary of Defense Pete Hegseth and Beth Schiavino-Narvaez, director of Department of Defense Activity (DoDEA) — cannot further remove books in efforts to implement President Donald Trump’s executive orders related to diversity, equity and inclusion.”

The censored books, the ACLU of Kentucky explained, “include materials about slavery, Native American history, women’s history, LGBTQ identities and history, and preventing sexual harassment and abuse, as well as portions of the Advanced Placement (AP) Psychology curriculum.”

Giles, an African American woman, wrote an opinion that serves as a model of clarity, marshaling applicable precedent, and meticulously shredding the government’s specious arguments. She was “unpersuaded” that the Trump regime could “circumvent the First Amendment entirely by asserting that the removal of books from DoDEA libraries constitutes government speech.” As she explained, libraries and schools are “places of academic freedom and intellectual pursuit,” which is utterly at odds with the assertion that “school libraries represent government speech.” Citing precedent that determined as much, Giles wrote:

Here, Plaintiffs have demonstrated a likelihood of showing that Defendants’ stated motivations for removing over 500 library books set forth an impermissible partisan or political motivation. Plaintiffs contend, and Defendants concede, that the book removals stem directly from the President’s Executive Orders. …. To further demonstrate the partisan motivation, Plaintiffs point to the President’s own plain words as a direct link between his EOs and his war on “wokeness.”

Hegseth’s book purge plainly constitutes viewpoint discrimination without any “pedagogical” purpose. As is often the case, Trump’s belligerent statements about his own impermissible motives doomed his attempt to trample on constitutional rights.

The ACLU of Kentucky touted the win. “The censorship taking place in DoDEA schools as a result of these executive orders was astonishing in its scope and scale, and we couldn’t be more pleased that the court has vindicated the First Amendment rights of the students this has impacted.” Giles held firm that the First Amendment that does not allow the regime to scrub “references to race and gender from public school libraries and classrooms just because the Trump administration doesn’t like certain viewpoints on those topics,” the ACLU observed.

Many inspiring opinions, as we know well from the MAGA dominated Supreme Court, come in dissents. In the 9^th Circuit, Judge Susan Graber not only parted company with two judges on the panel, but thoroughly dissected their inaccurate rendition of the facts and misapplication of law concerning Trump’s federalization and deployment of California’s national guard to Portland.

Graber began with this devastating observation:

In the weeks preceding the President’s September 27 social media post proclaiming that Portland was “War ravaged” and authorizing Secretary Hegseth to deploy federalized Oregon National Guard members, demonstrations in Portland were non-disruptive and small. Notwithstanding the turbulent events that had occurred several months earlier, the record contains no evidence whatsoever that, on September 27, Immigration and Customs Enforcement (“ICE”) was unable either to protect its Portland facility or to execute the immigration laws it is charged with enforcing. ….

Given Portland protesters’ well-known penchant for wearing chicken suits, inflatable frog costumes, or nothing at all when expressing their disagreement with the methods employed by ICE, observers may be tempted to view the majority’s ruling, which accepts the government’s characterization of Portland as a war zone, as merely absurd. But today’s decision is not merely absurd. It erodes core constitutional principles, including sovereign States’ control over their States’ militias and the people’s First Amendment rights to assemble and to object to the government’s policies and actions.

Graber called out the majority opinion’s factual contortions that indulged Trump’s dictatorial whims. She scolded the regime (and her fellow panelists) for using events from June to justify the current emergency.

“A pot of tepid water is not a pot of boiling water, and it cannot hurt you, even if it was boiling three hours earlier,” she icily observed.

In reiterating that “occasional illegal activity by such a small number of people in such a limited area is not at all akin to the Founding-era rebellions,” Graber rejected efforts to bootstrap occasional flare-ups into grounds for federal invasion.

She also reiterated that the Founders were well aware of “inherent dangers of allowing the federal executive to wrest command of the State militia from the States.” Congress under 10 U.S.C. § 12406 limits the circumstances for deviating from the norm. “Congress did not authorize deployment in merely inconvenient circumstances, and Congress unquestionably did not authorize deployment for political purposes. Article III commands that we enforce those limits,” she concluded. “The majority’s order abdicates our judicial responsibility, permitting the President to invoke emergency authority in a situation far divorced from an enumerated emergency.

Imploring partisans “who cheer this President’s use of troops” to think about a different president activating troops unnecessarily in their locales “to protect personnel who are enforcing laws that they vehemently dislike,” she ended with a damning rebuke of the majority:

We have come to expect a dose of political theater in the political branches, drama designed to rally the base or to rile or intimidate political opponents. We also may expect there a measure of bending—sometimes breaking—the truth. By design of the Founders, the judicial branch stands apart. We rule on facts, not on supposition or conjecture, and certainly not on fabrication or propaganda. I urge my colleagues on this court to act swiftly to vacate the majority’s order before the illegal deployment of troops under false pretenses can occur. Above all, I ask those who are watching this case unfold to retain faith in our judicial system for just a little longer.

Her plea to the public reflects her deep devotion to the rule of law and appreciation that millions are fearfully watching their democracy slip away. As of this writing the 9th Circuit is taking up her plea to consider an en banc review.

These judge remained undaunted in the face of executive overreach and legal flim-flam. Their courageous stance in defense of the Constitution and unwillingness to prostrate themselves at the feet of a disingenuous regime provides a model for all public servants. We salute Judges Giles and Graber, and urge the rest of the federal bench to follow their legally unassailable opinions.