Coming To Terms With Reality
I learned this afternoon that a judge (a Trump appointee, although I’m not sure it matters) has given the green light to eviscerate USAID by dismissing (illegally) and calling home almost all its workers. Just one of many decisions by the present maladministration that is causing actual pain and death, and will hasten the arrival of the next pandemic on these shores.
According to the AP report, the judge’s decision said that “At present, the agency is still standing.” That reminded me, for the umpteenth time in the past month, of one of my favorite Supreme Court cases. Called The Prize Cases, because several were heard as one, it was decided in 1863. (For the lawyers out there, the citation is 67 U.S. 635.) It involved several vessels that were seized during the Union blockade of the South during the Civil War. The owners sued to get them back, and one of their arguments was that a blockade is an act of war (true), but that the blockade in place was not lawful, because Congress had not declared war. The Supreme Court disposed of that notion by declaring that, “As a civil war is never publicly proclaimed, eo nomine [by that name] against insurgents, its actual existence is a fact in our domestic history which the Court is bound to notice and to know.” I’ve always been struck by the simple, clear declaration that courts must deal with, and recognize, reality: bound to notice and to know.
I suppose that I shall be disappointed if I wait for a court to hold that the (still) attempted coup we are experiencing is a fact that it is bound to notice and to know, but I still press for—and hope that others will push for—the courts to recognize that an agency that is barely being kept on life support is not “still standing.” That “layoffs” do not keep people employed. That using technicalities to avoid complying with court orders can still be contempt. And, that courts are generally bound, to live in the real world.
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Jon, I loved your post highlighting that judges must recognize reality -- instead of cocooning themselves in texualist arguments that maintain that if it's not explicitly mandated in the constitution, then it doesn't exist and, surely, doesn't matter.
When an untoward situation exists, like now, that appears to be a coup against existing or historical norms, it probably is a coup. Like the old maxim -- 'if it walks like a duck...it probably is a duck'.
This dichotomy between textualist and historicists is beautifully discussed by Stephen Breyer (former SCOTUS justice) in his recent book, Reading he Constitution: Why I Chose Pragmatism, Not Textualism (2024).
But for me this issue goes to a deeper psychology: Unfortunately, it seems, throughout much of history, people have wanted to trust what they are told, and have been schooled to believe in, rather than their own observatons and gut-feelings. It seems there is something heretical in believing in one's own feelings, thoughts, observations. This is the situation the autocratic thrives in and fosters.
Unfortunately, too many federal judges live in their own worlds. Not most, not a majority, but enough and strategically located to wreak havoc by choosing not to see beyond the end of their noses. But you're very right about pushing at reality.