The Circuit Judge

 I was listening to the oral arguments yesterday in the case to decide the short-term fate of the Texas immigration law SB4: the one that is notoriously designed to empower Texas state law enforcement officials to act as if they were immigration agents, with full powers of removal. The main thing that has emerged from the litigation is how utterly bizarre this statute is. It has layers upon layers of weirdness and illegality to it. 

Perhaps the most stunning thing about SB4 is that it appears to contemplate the existence of a sort of Texas-specific deportation power. It describes Texas state officers removing people to foreign territory in Mexico. And, unlike the federal removal power, this Texas state deportation power has no exception for any humanitarian claim or U.S. treaty obligation, such as asylum or withholding of removal under the Convention Against Torture. How could this possibly be legal? 

In the oral arguments before a three-judge panel of the Fifth Circuit, no one seemed able to defend this aspect of the bill. Even the attorney for Texas seemed unable to explain how the state could deport non-citizens from U.S. soil without running afoul of the doctrine of federal preemption and the supremacy of federal statute. The best he was able to do, ultimately, was to point to declarations from state officials attesting that the law would not be enforced that way in practice. 

Another fall-back option he invoked was to say that, if the removal provisions are indeed unlawful, they could perhaps be severed from the bill without striking the rest of it down. The attorney for the people challenging the bill seemed to suggest, meanwhile, that if the court prefers to go that route, they could amend the lower court's preliminary injunction so that it at least kept the removal provisions on hold, even if they allowed parts of the rest of the law to go into effect. 

Here, though, is where one of the judges—a Trump appointee—leapt for the jugular. It was the first time he had spoken during the oral argument, but he scarcely let up after that point. But even he seemed unable to articulate any remotely plausible case for how the Texas deportation provision would be lawful. Instead, he posed a number of hypotheticals in which he kept repeating, arbitrarily, "put the removal provisions aside." Are we putting them aside because we know they are indefensible? 

Ultimately, though, this judge appeared to hide behind a merely procedural point—always the last refuge of judicial scoundrelism. Much as the Supreme Court momentarily allowed SB4 to go into effect earlier this week, without considering any of its glaring flaws, on a theory of deference to the appeals court—so too, this judge argued that the standard practice with over-broad preliminary injunctions was to throw them out entirely, and leave it to the lower courts to amend them. 

In short, he had found the perfect procedural loophole to justify striking down the district court's injunction, without being able at any point to articulate a legal theory for how SB4's removal power provision could possibly survive on the merits. This way, he wouldn't have to defend it. He could effectively concede that it was lawless. But he could allow it to go into effect anyway, and content himself with thinking that he was merely following standard procedure. 

I don't mean to imply that all the judges on the panel were reasoning in this way to a foreordained conclusion. Despite sitting on the notoriously arch-conservative Fifth Circuit, after all, the three judges were actually a fair ideological cross-section of the federal judiciary. There was one Democratic appointee, who didn't say much during the argument. There was one Republican Bush-era appointee, who seemed very even-handed and reasonable in the questions she asked. 

But then there was this one obnoxious hack. And the worst thing about him wasn't even that he was flagrantly partisan, or that his questions revealed he had already made up his mind from the start. It was that he seemed so convinced and self-righteous about it. In his bullying, hectoring tone, he conveyed that he was utterly persuaded of the virtue and justice of his own procedural legerdemain. "I'm not doing this to cheat," he thinks: "I'm doing it because this is the law."

These, surely, are the most dangerous people on the bench: the ones who are partisan hacks without even realizing they are partisan hacks. The ones who are so deep in the waters of their own smug ideology that they can't even see it is an ideology—they just think these are the rules. Listening to this judge, I seemed to hear the voices of generations of kindred pencil-necked fascists before him. This is the same tone of voice that judges must have used as they sent witches to the stake. 

And then I remembered that Edgar Lee Masters—himself a lawyer as well as a poet, who must have argued cases before his share of pettifogging judicial fascists in his career—painted a portrait in verse of a circuit judge exactly like this one. The poem was even called "The Circuit Judge." And what did the judge do in this poem? He, like this one, hid behind the skirts of "procedure." He "decid[ed] cases on the points the lawyers scored,/ Not on the right of the matter." 

The result of such procedural sleight-of-hand in this case may well be that innocent people are deported to persecution and torture—if SB4 is allowed to go into effect—just as Masters's Circuit Judge sent people to the gallows on the basis of similar clever lawyering. Is there any justice, then, in this universe? Is there any hope for karma? If there is, Masters suggests, it is to be found in the fact that the lives that such judges lead is its own punishment. 

"For worse than the anger of the wronged," Masters concludes, "The curses of the poor,/ Was to lie speechless, yet with vision clear,/ Seeing that even Hod Putt, the murderer,/ Hanged by my sentence,/ Was innocent in soul compared with me."