On the Judicial Resistance

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Lawfare Institute

On the Judicial Resistance

By Josh Blackman

 Monday, February 12, 2018, 7:00 AM

Over the past year, I have discussed at some length the self-professed “legal resistance,” which has coordinated legal strategies to resist President Trump in the courts. This front is part of the broader #Resistance movement against President Trump in the political sphere. These actions are completely rational, and unsurprising from the party that (unexpectedly) lost the election. What has garnered the most opposition to my work in this context, is the concept of the “judicial resistance.” Dahlia Lithwick and Professor Steve Vladeck, for example, faulted my writings in an October 2017 op-ed titled The Dangerous Myth of the Judicial Resistance. “To the critics, these judges aren’t real judges,” Lithwick and Vladeck wrote, “they’re partisan hacks in robes.” This refrain, which has been repeated by other professors on Twitter, at once confuses my criticism of these judicial decisions and fails to account for my book-length treatment of the substance of their rulings. Without question, I have been extremely critical of these judicial opinions, which I firmly believe are profoundly flawed. Yet, I work very hard to ground my opposition in substantive arguments (many of which are published on Lawfare), and not devolve into political barbs.