by
Win
McNamee/Getty
Images)
Known
firebrand
leftist
Ronald
Reagan
stacked
the
courts
with
woke
activist
judges
who
keep
blocking
Donald
Trump’s
glorious
agenda!
First,
Judge
John
Coughenour
blocks
the
executive
order
erasing
the
Fourteenth
Amendment’s
citizenship
guarantee
as
if
some
“Constitution”
constrains
presidential
action.
Now,
Judge
William
Young
of
the
District
of
Massachusetts
unleashes
a
massive
excoriation
of
the
Trump
administration’s
effort
to
use
immigration
law
to
attack
campus
free
speech.
Meanwhile,
somewhere
out
there,
the
Democratic
Party’s
elected
leaders
considered
sending
Trump
a
polite
letter
of
concern.
Judge
Young’s
161-page
decision
ripped
the
administration
for
flexing
immigration
laws
to
abduct
and
threaten
to
deport
individuals
legally
within
the
United
States
based
on
pro-Palestinian
statements.
The
sweeping
opinion
comes
after
a
bench
trial
conducted
to
determine
if
the
administration
acted
to
unconstitutionally
chill
the
free
speech
rights
of
non-citizen
members
of
plaintiff
educational
associations.
Judge
Young
doesn’t
waste
much
time
getting
to
the
crux
of
it:
This
case
-–
perhaps
the
most
important
ever
to
fall
within
the
jurisdiction
of
this
district
court
–-
squarely
presents
the
issue
whether
non-citizens
lawfully
present
here
in
United
States
actually
have
the
same
free
speech
rights
as
the
rest
of
us.
The
Court
answers
this
Constitutional
question
unequivocally
“yes,
they
do.”
“No
law”
means
“no
law.”
The
First
Amendment
does
not
draw
President
Trump’s
invidious
distinction
and
it
is
not
to
be
found
in
our
history
or
jurisprudence.
See
Section
III.A
infra.
No
one’s
freedom
of
speech
is
unlimited,
of
course,
but
these
limits
are
the
same
for
both
citizens
and
non-citizens
alike.
Armed
with
this
established
principle
of
law,
Judge
Young
determined
that
officials
up
and
down
the
administration
acted
“deliberately
and
with
purposeful
aforethought”
to
chill
First
Amendment
rights.
Judge
Young
received
some
flak
online
for
his
decision
to
open
the
opinion
with
an
anonymous
postcard
he
received:
We
finally
have
a
rhetorical
successor
to
“John
Marshall
has
made
his
decision;
now
let
him
enforce
it!”
and,
appropriate
to
the
2025
America
milieu,
it’s
an
anonymous
postcard
in
all
caps,
haphazardly
hand-scrawled
by
a
lunatic.
Critics
chided
the
judge
for
using
this
as
a
framing
device.
We’re
the
first
to
criticize
judges
for
getting
cute
when
holding
someone’s
life
or
livelihood
in
the
balance.
When
a
judge
decides
to
go
off
with
a
bunch
of
puns
while
denying
a
stay
of
execution,
that’s
wildly
inappropriate.
That’s
not
really
the
case
here.
If
anything,
Judge
Young
is
doing
his
part
to
bring
more
attention
to
the
elevated
threat
level
faced
by
federal
judges
face
in
light
of
the
feckless
Supreme
Court.
The
White
House
has
used
the
Supreme
Court’s
unwillingness
to
explain
its
rubberstamping
of
the
administration
as
a
jumping
off
point
to
whip
Trump’s
followers
into
threatening
any
court
that
might
invoke
existing
precedent
to
place
brakes
on
executive
action.
America
has
always
had
cranks,
but
the
volume
of
cranks
preemptively
mouthing
off
to
judges
in
cases
that
don’t
even
involve
them
is
a
new
phenomenon.
Judges
don’t
have
a
lot
of
opportunities
to
share
what’s
going
on
behind
the
scenes
on
a
stage
as
impactful
as
a
written
opinion.
It
is,
paradoxically,
why
the
conservatives
on
the
Supreme
Court
are
so
adamant
about
not
writing
them.
A
footnote
in
the
opinion
directly
addresses
the
impact
the
shadow
docket’s
“governance
via
Post-It
note”
approach
has
in
emboldening
the
administration’s
lawlessness:
The
flurry
of
activity
on
the
Supreme
Court’s
emergency
docket
is
itself
a
tacit
admission
that,
when
dealing
with
an
administration
that
is
admittedly
seeking
to
“flood
the
zone,”
it
needs
to
intervene
to
correct
rulings
that,
if
not
immediately
remedied,
will
remain
in
effect
far
too
long.
He
leaves
open
to
the
reader
to
work
out
how
the
shadow
docket
is
being
used
instead
to
guarantee
incorrect
ruling
remain
in
effect
far
too
long.
Judge
Young
does
not
take
lightly
the
privilege
he
enjoys
to
enter
his
opinions
into
the
unbroken
line
of
American
jurisprudence.
To
that
end,
he
goes
beyond
the
mere
abuse
of
the
Immigration
and
Nationality
Act
—
which
he
notes
is
unprecedented
in
its
unconstitutional
gall
—
to
call
out
the
tactics
that
the
administration
adopts
to
add
to
the
sense
of
terror
they
can
impose
in
the
name
of
squelching
speech:
And
there’s
the
issue
of
masks.
This
Court
has
listened
carefully
to
the
reasons
given
by
Öztürk’s
captors
for
masking-up
and
has
heard
the
same
reasons
advanced
by
the
defendant
Todd
Lyons,
Acting
Director
of
ICE.
It
rejects
this
testimony
as
disingenuous,
squalid
and
dishonorable.
ICE
goes
masked
for
a
single
reason
—
to
terrorize
Americans
into
quiescence.
Small
wonder
ICE
often
seems
to
need
our
respected
military
to
guard
them
as
they
go
about
implementing
our
immigration
laws.
It
should
be
noted
that
our
troops
do
not
ordinarily
wear
masks.
Can
you
imagine
a
masked
marine?
It
is
a
matter
of
honor
—
and
honor
still
matters.
To
us,
masks
are
associated
with
cowardly
desperados
and
the
despised
Ku
Klux
Klan.
In
all
our
history
we
have
never
tolerated
an
armed
masked
secret
police.
Carrying
on
in
this
fashion,
ICE
brings
indelible
obloquy
to
this
administration
and
everyone
who
works
in
it.
“We
can
not
escape
history,”
Lincoln
righty
said.
“[It]
will
light
us
down
in
honor
or
dishonor,
to
the
latest
generation.”
Abraham
Lincoln,
Second
Annual
Message
to
Congress
(Dec.
1,
1862).
For
those
keeping
score,
this
is
a
Republican-appointed
judge
comparing
the
Republican
administration
to
the
Ku
Klux
Klan.
Remember
this
when
the
White
House
inevitably
blasts
this
as
a
partisan
opinion.
Speaking
of
partisanship,
aside
from
Judge
Young
being,
in
fact,
a
Republican,
some
critics
did
scold
the
judge
for
not
appearing
appropriately
neutral.
This
is
gaslighting.
Judges
shouldn’t
exhibit
bias
—
something
the
Supreme
Court’s
current
majority
consistently
refuses
to
consider
—
but
that’s
not
the
same
thing
as
betraying
a
point
of
view.
An
opinion
about
politicians
making
a
political
decision
to
abuse
their
role
of
public
servants
to
squelch
political
speech
will
always
sound
in
politics.
Without
condemning
the
actions
of
these
politicians,
the
extent
of
the
viewpoint
discrimination
on
display
takes
on
a
“view
from
nowhere”
quality.
It
becomes
the
sort
of
sterile
artifact
casually
tossed
in
the
dustbin
of
history
rather
than
standing
as
an
ongoing
touchstone
in
constitutional
jurisprudence.
To
borrow
from
another
old
Republican
who
would
be
loudly
protesting
this
administration,
“extremism
in
calling
out
constitutional
violations
is
no
vice.”
Vague
demands
of
“neutrality”
are
an
act
of
sentiment
policing
pitched
over
Chick-fil-A
in
the
Federalist
Society
writers’
room
to
help
mute
the
severity
of
constitutional
violations.
It’s
cheap,
bothsiderism
rhetoric
designed
to
normalize
authoritarian
creep
by
scolding
everyone
who
dares
describe
it
as
anything
but
politics
as
usual.
It’s
a
strategy
that’s
enjoyed
undue
success:
Behold
President
Trump’s
successes
in
limiting
free
speech
-–
law
firms
cower,53
institutional
leaders
in
higher
education
meekly
appease
the
President,54
media
outlets
from
huge
conglomerates
to
small
niche
magazines
mind
the
bottom
line
rather
than
the
ethics
of
journalism.5553
But
not
all
of
them.
See
infra.
54
But
not
all
of
them.
See
infra.
55
But
not
all
of
them.
See
infra.
We’ve
talked
a
lot
about
the
cowering
ones.
The
most
important
thing
to
remember
though
is
that
it’s
not
just
the
Nefarious
Nine
firms
who
struck
deals
with
Trump.
Firms
across
the
industry
took
steps
to
avoid
Trump’s
ire
entirely,
quietly
deleting
hiring
initiatives,
firing
HR
staff
who
worked
on
anti-discrimination
efforts,
and
eschewing
social
justice
pro
bono
work.
It
is,
“not
all
of
them,”
but
it’s
a
lot
of
them.
Unfortunately,
the
judge
seems
to
feel
a
little
less
than
enthusiastic
about
the
rule
of
law
right
now.
In
the
golden
age
of
our
democracy,
this
opinion
might
end
here.
After
all,
the
facts
prove
that
the
President
himself
approves
truly
scandalous
and
unconstitutional
suppression
of
free
speech
on
the
part
of
two
of
his
senior
cabinet
secretaries.
One
would
imagine
that
the
corrective
would
follow
as
a
matter
of
course
from
the
appropriate
authorities.
Yet
nothing
will
happen.
The
Department
of
Justice
represents
[]
the
President,
and
Congress
is
occupied
with
other
weighty
matters.
By
“other
weighty
matters,”
he
means
“covering
up
the
Epstein
files.”
The
161-page
missive
ends
on
an
ominous
note:
Freedom
is
a
fragile
thing
and
it’s
never
more
than
one
generation
away
from
extinction.
It
is
not
ours
by
way
of
inheritance;
it
must
be
fought
for
and
defended
constantly
by
each
generation,
for
it
comes
only
once
to
a
people.President
Ronald
Reagan,
Inaugural
Address
as
Governor
of
the
State
of
California
(January
5,
1967).I
first
heard
these
words
of
President
Reagan’s
back
in
2007
when
my
son
quoted
them
in
the
Law
Day
celebration
speech
at
the
Norfolk
Superior
Court.
I
was
deeply
moved
and
hold
these
words
before
me
as
a
I
discharge
judicial
duties.
As
I’ve
read
and
re-read
the
record
in
this
case,
listened
widely,
and
reflected
extensively,
I’ve
come
to
believe
that
President
Trump
truly
understands
and
appreciates
the
full
import
of
President
Reagan’s
inspiring
message
–-
yet
I
fear
he
has
drawn
from
it
a
darker,
more
cynical
message.
I
fear
President
Trump
believes
the
American
people
are
so
divided
that
today
they
will
not
stand
up,
fight
for,
and
defend
our
most
precious
constitutional
values
so
long
as
they
are
lulled
into
thinking
their
own
personal
interests
are
not
affected.Is
he
correct?
Probably.
Joe
Patrice is
a
senior
editor
at
Above
the
Law
and
co-host
of
Thinking
Like
A
Lawyer.
Feel
free
to email
any
tips,
questions,
or
comments.
Follow
him
on Twitter or
Bluesky
if
you’re
interested
in
law,
politics,
and
a
healthy
dose
of
college
sports
news.
Joe
also
serves
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Managing
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