Welcome back, Deadline: Legal Newsletter readers. If you’re at least a casual news consumer, you’ve probably seen a rash of retrospectives on the first 100 days of Donald Trump’s second term. I contributed to the genre here. This week’s newsletter continues along that reflective theme, looking at how judges are invoking American history to help us understand the moment we’re in.
The Red Scare in the 1920s and McCarthyism in the 1950s featured in a ruling ordering the release of Mohsen Mahdawi on Wednesday. The legal U.S. resident was seized by immigration agents at his citizenship interview last month in Vermont. He argued that he was targeted for exercising his right to speak out for Palestinians. U.S. District Judge Geoffrey Crawford seemed to agree, finding that his continued detention would likely have a “chilling effect” on protected speech.
The judge also marked the moment by noting “the extraordinary setting of this case and others like it.” He observed that legal residents who haven’t been charged with any crimes are being threatened with deportation for stating their views on political issues of the day. Against that backdrop, Crawford summoned the anti-communist Red Scare and McCarthyism panics of the last century. “The wheel of history has come around again,” the Obama-appointed judge wrote, “but as before these times of excess will pass.”
To be sure, it’s been a bipartisan judicial affair calling out this administration. Crawford’s ruling reminded me of last month’s lesson from Reagan-appointed appellate Judge J. Harvie Wilkinson III. Lamenting the government’s resistance to returning the illegally deported Kilmar Abrego Garcia, Wilkinson wrote that “[t]he Executive may succeed for a time in weakening the courts, but over time history will script the tragic gap between what was and all that might have been, and law in time will sign its epitaph.” The government is still resisting Abrego Garcia’s return.
This week, another Reagan appointee zoomed out to rebuke claims “from both inside and outside government” that the courts are causing a constitutional crisis by usurping Trump’s power. U.S. District Judge Royce Lamberth ordered the government to disburse congressionally approved funds to pro-democracy nonprofit Radio Free Europe. In doing so, the judge wrote that he was “humbly fulfilling my small part in this very constitutional paradigm — a framework that has propelled the United States to heights of greatness, liberty and prosperity unparalleled in the history of the world for nearly 250 years.” Lamberth concluded that “[i]f our nation is to thrive for another 250 years, each co-equal branch of government must be willing to courageously exert the authority entrusted to it by our Founders.”
Justice Ketanji Brown Jackson joined the historical conversation in remarks to a judicial conference in Puerto Rico. Politico reported that she condemned attacks on judges who have ruled against the administration. The Biden appointee reportedly encouraged judges to be courageous and “keep doing what is right for our country, and I do believe that history will vindicate your service.” Jackson and her high court colleagues wrapped up the term’s regularly scheduled arguments this week. Among them was a case that could make history because at stake is whether the justices will approve the nation’s first-ever publicly funded religious charter school. While Justice Amy Coney Barrett’s recusal from the appeal could make the vote closer, the remaining Republican appointees were largely sympathetic to the school, which the Trump administration backs. It could come down to Chief Justice John Roberts’ vote. The Supreme Court’s next hearing is a rare one over Trump’s quest to curb birthright citizenship, set for a special May 15 session. Besides that, the justices are busy writing their final opinions of the term, which are typically published by July. In the meantime, they’re frequently fielding emergency litigation that could produce orders at odd hours, including on the administration’s pending appeal to enforce a ban on transgender military service. The administration added yet another emergency request on Friday, seeking permission for Elon Musk’s Department of Government Efficiency to access Social Security data. Have any questions or comments for me? Please submit them on this form for a chance to be featured in the Deadline: Legal blog and newsletter.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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