The Judges and Juries Saving the Republic From Trump

The Supreme Court has enabled many of the Trump administration’s worst abuses over the past 14 months, particularly when it comes to his mass deportation plans. The justices’ shadow docket has largely served as a Pez dispenser for injunctions to stay the most significant lower court rulings against Trump. And while the Roberts court bucked its own deferential tendencies to declare the president’s tariffs to be unlawful last week, some important tests remain on the Federal Reserve and birthright citizenship.

But the lower courts have, for the most part, risen to the occasion and understood the gravity of what is happening in this country right now, despite the Supreme Court’s failures. Judge Sunshine Sykes in California struck down the administration’s mandatory-detention policy for immigration-related arrests by ruling that the government had failed to comply with her past orders on the practice, noting that Americans “have expressed deep concerns over unlawful, wanton acts by the executive branch.”

Judge Fred Biery in Texas was even more blunt when ordering the release of 5-year-old Liam Conejo Ramos from a federal immigration detention center last month. “Observing human behavior confirms that for some among us, the perfidious lust for unbridled power and the imposition of cruelty in its quest know no bounds and are bereft of human decency,” he wrote in a three-page order. After his signature, he affixed a photo of young Liam being detained by immigration agents and affixed two Bible quotes, Matthew 19:14 (“Jesus said, ‘Let the little children come to me, and do not hinder them, for the kingdom of heaven belongs to such as these’”) and John 11:35 (“Jesus wept”).

This is not how federal judges write opinions and orders in normal circumstances. The growing pace with which the federal judiciary is being compelled to speak in such direct, unvarnished terms is a sign of how far the country has drifted from legitimate constitutional government. Take, for instance, the Trump administration’s unconstitutional campaign to punish six Democratic lawmakers for a video they published last November. At the time, the White House and the Pentagon were under intense scrutiny for a series of military strikes in the Caribbean targeting alleged drug-trafficking boats. Many observers have warned that these strikes could violate international law.

In the video, the six members of Congress—all of whom had previously served in the military—directly addressed American troops to tell them to “refuse illegal orders” if issued to them. “No one has to carry out orders that violate the law, or our Constitution,” they collectively said. “Know that we have your back.” Under the Uniform Code of Military Justice, the legal code for the U.S. armed forces, soldiers are obligated to not follow illegal orders and face the potential risk of prosecution if they carry them out.

The Trump administration’s response was volcanic. Trump himself angrily described the video’s language as “seditious behavior, punishable by death.” Defense Secretary Pete Hegseth denounced it as a “politically motivated influence operation” and described the lawmakers as the “Seditious Six.” In January, Hegseth sent a letter to Arizona Senator Mark Kelly, who appeared in the video, to formally notify him that he had “engaged in a sustained pattern of public statements that characterized lawful military operations as illegal and counseled members of the Armed Forces to refuse orders related to those operations.”

As a result, Hegseth censured Kelly, directed Pentagon officials to determine whether the senator should be reduced in rank—which would, among other things, lower his retirement pay—and warned that he could face potential criminal prosecution if he continued to “engage in conduct prejudicial to good order and discipline.” Kelly responded a few days later by filing a federal lawsuit against Hegseth to challenge the move on multiple grounds, including the First Amendment.

It is a gobsmacking notion that the Pentagon could lawfully punish a retired service member for publicly giving a straightforward explanation of the UCMJ, much less one who happens to be a U.S. senator. Judge Richard Leon noted, quite correctly, that it was indisputable that the First Amendment applies more narrowly to American service members in this context than to civilians because of the inherent need to maintain military discipline.

“Unfortunately for Secretary Hegseth, no court has ever extended those principles to retired servicemembers, much less a retired servicemember serving in Congress and exercising oversight responsibility over the military,” Leon testily explained. “This Court will not be the first to do so!”

Here we have a judge who can not only read the law and the Constitution but who also understands the principles by which they were drafted. Few principles are more bedrock to the American constitutional order than civilian control of the military, as enshrined by the president’s role as commander in chief and Congress’s control over its funding. The proper response to Hegseth’s maneuver is not a law-school symposium or a bloodless explanation—it is unvarnished disgust.

Leon noted, when describing the procedural aspects of the case, that the proposed reduction in rank “would, in all likelihood, be a fait accompli!” (The judge used exclamation points on more than a dozen separate occasions in the opinion.) “Secretary Hegseth issued the Letter censuring Senator Kelly,” Leon continued. “The Letter cannot be appealed, and it serves as the sole factual basis for the Retirement Grade Proceeding.” And even if the board reaches a different conclusion, Hegseth retains the power to override it.

For that reason, Leon found it ridiculous for Pentagon lawyers to suggest that Kelly first had to go through the proper administrative process before he could bring his case to the courts. “This Court has all it needs to conclude that Defendants have trampled on Senator Kelly’s First Amendment freedoms and threatened the constitutional liberties of millions of military retirees,” the judge explained. “After all, as Bob Dylan famously said, ‘You don’t need a weatherman to know which way the wind blows.’ To say the least, our retired veterans deserve more respect from their Government, and our Constitution demands they receive it!”

The Pentagon also claimed that Kelly’s lawsuit had to be rejected because Congress expressly bound retired service members to the UCMJ. Leon did not dispute that notion but felt obligated to explain basic principles of American constitutionalism to them nonetheless. “Horsefeathers!” he exclaimed, concluding that Congress’s choice “has little bearing on the scope of First Amendment protections for retirees. The First Amendment is a limitation on the power of Congress, not the other way around!”

His injunction has the air of a high school principal who just discovered that his students think Florida is in the Himalayas. “Rather than trying to shrink the First Amendment liberties of retired servicemembers,” Leon concluded, “Secretary Hegseth and his fellow Defendants might reflect and be grateful for the wisdom and expertise that retired servicemembers have brought to public discussions and debate on military matters in our Nation over the past 250 years.

“If so, they will more fully appreciate why the Founding Fathers made free speech the first Amendment in the Bill of Rights!” he continued. “Hopefully this injunction will in some small way help bring about a course correction in the Defense Department’s approach to these issues.”

Other constitutional actors apparently agreed with Leon’s view of the matter. Earlier this month, federal prosecutors from the U.S. Attorney’s Office for the District of Columbia sought to indict Kelly and his five colleagues for alleged criminal offenses related to the video’s publication. It is unclear precisely what charges were sought. The failure to obtain them is another spectacular and humiliating defeat for Jeanine Pirro, the U.S. attorney for the district, and a significant setback for the Trump administration as it tries to criminalize dissent.

Just as importantly, however, it is a reminder of the power of the ordinary American citizen when empaneled as a juror in a court of law. The last 14 months have arguably done more to demonstrate how juries preserve Americans’ liberties than the preceding 14 decades. D.C. became the first to show that juries could be more than a procedural checkbox for vengeful prosecutors, last year, in the case of Sean Dunn, who allegedly threw a Subway sandwich at federal immigration agents in the city in August.

In an apparent effort to make an example of him, federal prosecutors first charged Dunn with felony assault of a law enforcement official and touted his arrest on social media. That effort fell apart a few weeks later when the citizens of the nation’s capital, serving as grand jurors, declined to approve a felony indictment against him. Prosecutors then pivoted to charging Dunn with misdemeanor assault, which does not require the approval of a grand jury. They were then foiled by a petit jury of Dunn’s peers that duly acquitted him in November.

Since then, the phenomenon of grand jury resistance has only grown. Trump’s high-profile crackdown in D.C. last fall yielded a wave of prosecutions that fell far short of what Washington’s grand jurors thought was justified. Across the Potomac in Virginia, grand jurors declined to bring some charges against Federal Reserve Governor Lisa Cook in September. (A judge later dismissed the rest after prosecutors improperly tried to bypass the grand jury.) In Chicago, where another Trump-led siege faltered after a federal judge blocked the use of the National Guard, grand jurors have torpedoed more than a dozen apparently spurious cases related to immigration enforcement.

There could be few greater tributes to the Constitution on the 250th anniversary of this nation’s founding. The Framers greatly valued the jury as an instrument to prevent abusive governance. “​​We think in America that it is necessary to introduce the people into every department of government as far as they are capable of exercising it; and that this is the only way to ensure a long-continued and honest administration of its powers,” Thomas Jefferson told a French acquaintance in a letter in 1789.

The people exist in the executive branch by electing the president, Jefferson explained, and in the legislative branch by choosing their own lawmakers. The average American is not qualified to serve as a judge, he noted, but the jury system is how they make their presence felt in the judicial branch. “Were I called upon to decide whether the people had best be omitted in the Legislative or Judiciary department, I would say it is better to leave them out of the Legislative,” Jefferson argued. “The execution of the laws is more important than the making [of] them.”

Speaking for myself, I would not endorse that position unreservedly. But the Framers envisioned both courts and juries as a vital bulwark to liberty, and they are two of the few institutions that have acquitted themselves well—no pun intended—over the last year. It is a grim milestone that our elected branches of government have done the most harm to our constitutional system over the past year, while the branch composed of lifetime appointments and citizens chosen by random lot has done the least. Fortunately, Americans can reshape the legislative branch to meet that standard in a little less than nine months.