Tin soldiers
By 
Dalia Lithwick and Mark Joseph Stern have a conversation about how a in many ways corrupted and compromised federal judiciary is still one of the very few remaining barriers to a de facto military dictatorship. An interesting thing that’s been happening is that some judges are beginning to break the fourth wall that traditionally separates judicial discourse from straightforward legal-political conversation:
Dahlia Lithwick: I want to flag some of the language from Judge Susan Graber’s dissent. And it’s shocking because, in a deep sense, she’s not just talking to her colleagues, to other judges on the 9th Circuit. She’s talking to us. Toward the end, she wrote: “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.”
This is very much in the key of judges trying to tell us that they are pinned under a heavy collapsed refrigerator and that we—the rest of us—have to put some skin in the game. It is literally a judge telling Americans who are shrugging—who say, “Well, there’s nothing the courts can do”—to pull it together.
Mark Joseph Stern: She’s breaking the fourth wall, which is something judges do only in case of emergency. She’s reaching out directly and asking us not to lose faith in the judiciary. And I get it, because I am actively losing faith in the judiciary. But I think Graber is urging us to hold on, not only because she believes that the full 9th Circuit can correct this error, but because she knows that the judiciary is the last buffer between us and tyranny. This is the paradox you and I have been living with since Jan. 20, right? The judiciary is badly corrupted by Trump and his appointees. There are real limits on its ability to enforce the law. The Supreme Court itself is frequently in Trump’s pocket. And yet, in so many cases, the only real check on Trump’s abuses of the law is the courts. It’s the federal judges who are going to either step up or shrink from their duty. That’s true at least until Congress reasserts itself, which isn’t going to happen anytime soon.
So I really admired the way Graber closed this dissent. Frankly, I think more judges need to do this kind of thing. People are losing faith in our judicial system. They’re questioning why federal courts even exist if they aren’t going to stand up to the worst abuses of executive power in American history. And I guess Graber is telling us to hang on—that if we keep the faith, soon enough the courts will show us why they still deserve to be trusted as guardians of liberty. . . .
On Wednesday, the full court declined to reconsider the L.A. decision en banc, but 11 judges said it should have, because the majority gave way too much deference to the president. Judge Marsha Berzon wrote an extraordinary dissent in which she asserted that without careful judicial review of the Guard’s domestic deployment, “this country could devolve into one in which the use of military force displaces the rule of law, principles of federalism, and the federal separation of powers, all fundamental precepts of our democracy long understood as protecting the liberties of individuals and the assurance of self-governance.”
Let’s be clear what Berzon is warning about here: It’s martial law. She is warning that we are on a path to martial law if the courts are not allowed to enforce the strict limits on the domestic peacetime enforcement of the National Guard by the president. She is warning that our representative government is on the brink of disaster, if not extinction, if the courts allow the president to send in the military every time there are protests and dissent that he doesn’t like, wielding the troops as a weapon against his perceived political opponents.
I think she’s dead right, of course. But I also think there’s a tendency among a lot of people to dismiss all this because the Guard hasn’t yet committed any obvious, egregious, and violent violations of the Constitution, as far as we know. And, in a separate dissent, Judge Ronald Gould warned us that could happen. He raised the specter of the Kent State shootings and said that we are basically gambling on this happening again very soon, perhaps multiple times, if the president continues to deploy a force into American streets that is trained to fight foreign wars.
Donald Trump is a murderous sociopath, who is just as eager to illegally use state violence to kill his domestic opponents as he is to blow up fishing boats to intimidate a foreign government. That the military and paramilitary forces he’s deploying in blue cities haven’t done so yet is irrelevant: it’s merely a matter of time before the National Guard and ICE start killing people.
At which point there will be loud cheers from the tens of millions of Americans who fully support breaking the law to murder your enemies, real and imagined, foreign and domestic, and much hand-wringing from all the reactionary centrists who will Both Sides state murder as one of those things that happens when liberals and fascists don’t sit down together to talk out their differences like reasonable people (hi Ezra).