The left can’t litigate Trump into submission

February 24, 2017

The left should rely on its own capacity to mobilize opposition on a principled political basis if it hopes to beat back Trump's assault on Muslims, explains Brian Sullivan.

DONALD TRUMP'S first effort to enact a "travel ban" directed at Muslims was handed a series of stinging legal defeats. This is great news--Trump's January 27 executive order, authored by Steve Bannon and Stephen Miller, against citizens of seven Muslim-majority countries and against refugees was a blunt instrument of Islamophobic reaction.

Because of lawsuits filed by the ACLU, the states of Washington and Minnesota, and other entities, federal judges put a hold on the racist travel ban, ruling that it likely violates the U.S. Constitution.

These court decisions secured a welcome respite from the inhuman conditions caused by the ban. For example, a Syrian national traveling from Saudi Arabia to Chicago to care for her sick and elderly mother was detained for five hours at O'Hare International Airport and ultimately forced to return home without seeing her family. An Iranian professor who fled to the U.S. after Iran's government imprisoned her family told the Guardian that she had been effectively "banned from seeing [her] loved ones...banned from travelling...banned from being a human being."

Philadelphians converge at the airport to resist the President's Muslim ban
Philadelphians converge at the airport to resist the President's Muslim ban (Joe Piette | flickr)

It isn't the case, however, that we can all rest comfortably now, as if the government's system of "checks and balances" is functioning as it ought to. Leaving this battle in the hands of a judiciary that has failed oppressed people on many occasions would be a grave mistake.

What's more, the Trump administration is planning to issue an updated executive order, tweaked to try to get around the objections of the judges who issued the stay. It's certainly possible that a revised order could get an okay from a federal judiciary stacked with Republican appointees.

The judicial stays of the ban didn't occur in a political vacuum. The first was enacted in the wake of an eruption of popular protest at airports around the country. These protests created a space for the ACLU, which filed the first case against the ban, to take action, and they also put pressure on the judiciary--something that no doubt played a role in a federal appeals court three-judge panel upholding the initial ruling.

Continued popular pressure is going to be necessary the keep the courts honest.

THE ACLU and other advocacy groups have carried out effective legal challenges on this issue, and their legal successes have given confidence to people who want to take a stand against the travel ban.

But there's a difference between the arguments needed to win a legal case and the ideas needed to guide a political challenge to the anti-Muslim assault being carried out by the Trump administration.

A few examples illustrate the point. The ACLU secured the first legal win against Trump's Muslim travel ban in a case called Darweesh v. Trump. In requesting the stay, however, the ACLU leaned on some problematic arguments that have weighed down opposition to imperial war in the Middle East.

The two named plaintiffs in the ACLU case, Hameed Khalid Darweesh and Haider Sameer Abdulkahleq Alshawi, were military contractors for the Pentagon who served as translators for U.S. troops after the 2003 invasion and occupation of Iraq. The ACLU argued that the two men now faced violence from "anti-American" insurgents and "terrorists."

It should go without saying that nobody should have to live under the threat of violence. However, the ACLU's strategy here is grounded in the "good Muslim/bad Muslim" dichotomy that has been used as ideological cover for the "war on terror." Under the Obama administration especially, the U.S. could offer an olive branch to the "good" Muslims to justify violence against the "bad" ones.

The ACLU chose plaintiffs who it thought would seem more sympathetic, even commendable, and highlighted their patriotic bona fides. Though this might be best suited to winning a legal case, a movement to challenge anti-Muslim bigotry needs to reject the idea that the U.S. government has the right to choose who the "good" and "bad Muslims" are.

It also needs to show that the U.S. government itself is the world's most dangerous source of terror. After all, the continuous U.S. war on Iraq--from George H.W. Bush's first Gulf War in 1991 to Bill Clinton's sanctions that killed a half million or more Iraqi children to George W. Bush's invasion and occupation--has indiscriminately killed hundreds of times more Muslims than al-Qaeda and ISIS combined.

In State of Washington v. Trump, the federal courts imposed even more severe restrictions on Trump's travel ban. In their brief to the 9th U.S. Circuit, the states of Washington and Minnesota relied on a similar strategy, arguing that "[w]hile preventing terrorist attacks is an important goal, the order does nothing to further that purpose by denying admission to...refugees who valiantly assisted the U.S. military in Iraq."

The good Muslim/bad Muslim dichotomy is racist, portraying all Muslims as worthy of suspicion unless they can clear their names. It also obscures the material political foundations of anti-American sentiment in the Muslim world, instead dismissing large swaths of that world as atavistic and savage.

In order to effectively challenge Trump's new and more vitriolic anti-Muslim policies, the left needs to break with the softer Islamophobia of his predecessors in the White House.

The ACLU's lawyers no doubt know their audience and are careful to craft legal strategies that will appeal to federal judges. For the left to accept this framework, however, is out of the question. Instead, we must be unambiguously against all imperialism and its attendant racist ideology.

THE IDEOLOGICAL limitations of the U.S. judiciary are related to a more fundamental problem with pursuing a purely legal strategy against Trump. Even if the ACLU's legal arguments were stripped of all their problematic politics, the fact is that the court system can only accomplish so much.

For this, we can look at the famous example of Brown v. Board of Education of Topeka to illustrate this point.

The 1954 Brown v. Board of Education decision was a sweeping refutation of the Jim Crow policy of separate-but-equal public schools. With this ruling, the court's justices explicitly sought to usher in a new era of in the Jim Crow South, decreeing that racially segregated schools were unconstitutional and ordering states to end segregation with "all deliberate speed."

But 10 years after Brown v. Board, only a handful of Black students in the South attended public schools with white students. It took the massive mobilizations of the civil rights movement to compel the federal government to carry out the desegregation that the Supreme Court had left to the states--the very entities opposed to integration in the first place--to implement on their own.

Today, more than 60 years after that historic ruling, racial segregation in schooling persists. This reality is not isolated to the South, nor to conservative "red states." Across the country, including liberal strongholds like New York City, separate and unequal remains the norm.

Part of the explanation for why segregation persists is that the Supreme Court itself put its stamp of approval on segregation in public schools. In Milliken v. Bradley, a 1974 case involving busing in the Detroit public school system, the Supreme Court decided that the outcome of segregated school was perfectly fine, so long as segregation was not the explicit policy of the state.

How do we account for these seemingly incompatible conclusions? Why would the Supreme Court go from a confident denunciation of separate but equal to mealy-mouthed approval?

There are number of reasons, but probably the most important is that the civil rights movement had receded by the early 1970s when Milliken was decided.

In the 1950s, as the civil rights movement was moving into high gear, racial segregation was becoming an embarrassment, particularly on the international stage as the U.S. sought to project itself as the beacon of democracy and freedom in contrast to its Cold War rival, the former USSR.

Repeated clashes between police and African Americans demanding basic dignity and equality threatened to undermine the progressive global image that the U.S. State Department sought to project. A new common sense was emerging, and it left little room for the Supreme Court to do anything but condemn the policy of separate but equal.

But by the time Milliken was decided, the ruling class had begun clawing back the gains of the previous generation. The courts didn't face the same pressure from below to challenge racist segregation, and instead were pushed in the other direction by an emboldened ruling class that went on the offensive on multiple fronts, from the class struggle to federal legislation to court decisions and popular ideology.

Thus today, we live with the aspirations of Brown v. Board, but the reality of the New Jim Crow, as author Michelle Alexander calls it.

(Incidentally, it was also in the early 1970s, during the Nixon administration and with a Supreme Court with many conservative appointees that the Roe v. Wade case legalizing abortion was decided. It wasn't the quality of the judges that determined that case, but the strength of the women's movement, even as the social struggles of the previous period were receding.)

THE LEFT isn't going to litigate Trump into submission. The judiciary may have swatted away Trump's January 27 executive order, but this isn't because the judiciary is an ardent defender of progressive values. After all, the courts have long tolerated affronts to basic notions of equality, justice and due process.

The judiciary, however, does want to assert its institutional prerogatives and privileges relative to Trump's assertion of executive authority. Moreover, these judges are concerned--to a greater or lesser extent, depending on the circumstances--with defending the legitimacy of the U.S. legal and political system as a whole, especially when faced with an executive branch seeking to challenge their authority.

Thus, it is no surprise that this section of the political establishment would resist the aggressive, overreaching policies of Bannon and Trump, at least in the first instance.

Furthermore, the judiciary will have allies among the ruling class in this instance. Many powerful interests opposed Trump in the presidential election, and blatantly anti-worker companies like Amazon and Uber supported Washington state's challenge to the Muslim ban. Just because they oppose Trump's particular executive order doesn't mean these forces are on our side.

Ultimately, the judiciary is more than comfortable with a subtler Islamophobia. As the district court order in Washington v. Trump illustrates, federal judges are happy to recognize the "war on terror" as legitimate and willing to give the executive branch broad leeway in conducting that war. Trump simply overstepped the boundaries of that leeway.

Thus, even as the judge issued a stay blocking the Muslim ban, he ruled that "the Government's interest in combatting terrorism is an urgent objective of the highest order."

This was a quote from U.S. Supreme Court precedent in Holder v. Humanitarian Law Project, and the citation itself reveals much about the political limitations of the judiciary. The case was a major setback for civil liberties, with the U.S. Supreme Court ruling that the PATRIOT Act authorized significant infringement on political speech. The conclusion drawn by the left was that even supposedly sacrosanct rights like freedom of speech will be trampled by the courts in the right political environment.

THE POINT, then, is for our side to shape that political environment.

As Rob Hunter commented at Jacobin, "a legal battle will only be won if judges' room for maneuver is limited by public opinion...Protesters against the refugee ban must not succumb to the idea that the institutions of constitutional democracy will ride to our rescue, or that democratic norms are self-enforcing."

Indeed, when the U.S. Supreme Court heard cases in 1989 and 1992 that could have led to Roe v. Wade being overturned, Justices Sandra Day O'Connor, Anthony Kennedy and David Souter, in their 1992 majority decision upholding Roe, indirectly acknowledged the power of public opinion. They wrote that Roe had established a "rule of law and a component of liberty we cannot renounce"--which could be reversed only "at the cost of both profound and unnecessary damage to the Court's legitimacy, and to the nation's commitment to the rule of law."

Crucially, there were mass mobilizations of hundreds of thousands of supporters of abortion rights in Washington, D.C., ahead of the Supreme Court's hearings on the matter in both 1989 and 1992.

What this history demonstrates is that the courts don't decide matters based simply on cold legal logic. Though they seldom admit it, judges must also consider the legitimacy of the courts and the entire U.S. political system. Social movements and public opinion, for better or worse, have the power to set the limits of what's considered legitimate and illegitimate.

If the left lets up on the fight against Islamophobia, we can be sure that recent legal victories will evaporate before our eyes.

None of this is to downplay the significance of these wins. As Danny Katch wrote for

The federal appeals court decision against the ban has already given people who oppose Trump a tremendous boost of confidence--and helped ensure that the spontaneous airport protests that directly confronted Trump's order will become a model for resistance to the next attacks to come from the White House.

Ultimately, these forms or resistance will determine whether Trump and his cronies can get away with another version of the Muslim ban.

At the end of the day, nobody can win this fight for us except us. We are not going to sue our way to a new society. The left can't allow its politics to be dictated by the judiciary or legal advocacy organizations--and we can't allow these institutions to mark out the limits of the battle ahead.

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