Trump’s Judge Whisperer Promised to Take Our Laws Back to the 1930s

This blog was originally published in Slate on May 27, 2019.

One week before the 1980 presidential election, toward the end of his lone debate against Jimmy Carter, Ronald Reagan stared into the camera and implored Americans to ask themselves, “Are you better off than you were four years ago?” The question is widely believed to have ended Carter’s presidency.

In the spring, the Washington Post published a profile of Federalist Society Executive Vice President Leonard Leo, focusing in part on a speech he gave to the Council for National Policy in which he warmly predicted the Supreme Court would soon return to the pre–New Deal era of “limited, constitutional government.” Leo believes, in other words, that the court’s view of the Constitution was better off 85 years ago than it is today.

“I think we stand at the threshold of an exciting moment in our republic,” Leo told the council at a closed-door meeting in February, audio of which was obtained by the Post. “This is really, I think, at least in recent memory, a newfound embrace of limited constitutional government in our country. I don’t think this has really happened since probably before the New Deal.”

The average American doesn’t know who Leo is, but as the Post piece makes clear, he‘s one of the most influential lawyers in the country. A longtime leader within the Federalist Society, Leo has had Donald Trump’s ear on judicial appointments and has been the main curator of the president’s list of Supreme Court candidates. Two of Leo’s personal picks, Brett Kavanaugh and Neil Gorsuch, have been elevated to the highest court in the country since Trump’s election. So when Leonard Leo says he wants to return to a pre–New Deal Constitution, you should listen. And you should be alarmed.

As Leo knows, constitutional law was very different in the 1930s from what it is today. And in a word, it sucked.

In the 1930s, the courts were fully complicit in maintaining the country as a thoroughgoing ethnocracy, governed openly for the benefit of white men. Public schools in 21 states were racially segregated by law. “Separate but equal” schools had been affirmed by the Supreme Court as late as 1927, in a unanimous decision allowing Mississippi to kick a Chinese American girl out of her local “white” school for being a member of the “yellow” race. The outlawing of segregation is settled law in our country, and nobody would dare dream of returning to those antiquated judicial interpretations, you might say? Several of Trump’s judicial nominees have conspicuously, outrageously, refused to say whether they thought Brown v. Board of Education, which ended legal school segregation in 1954, was correctly decided.

Leo believes that the court’s view of the Constitution was better off 85 years ago than it is today.

In the 1930s, through a combination of discriminatory literacy tests, poll taxes, “good character” requirements, and straight-up violence, less than 1 percent of black people in the Deep South—where they represented more than a third of the population—were registered to vote. The Supreme Court had blessed these intimidation practices for decades, ever since a 1903 decision in which the court said it couldn’t do anything about Alabama’s self-described effort “to establish white supremacy in this state” by refusing to register black voters. Discriminatory voting practices of this sort weren’t banned until the 1965 Voting Rights Act, the most significant provision of which was gutted six years ago in an opinion by Chief Justice John Roberts (whom Leo also helped elevate to the court).

In the 1930s, women had no constitutional right to equality. They could legally be kept off juries, given different work hours, paid less money, and imprisoned for using birth control. It would be another four decades before the Supreme Court struck down even a single law for discriminating against women. Kavanaugh and Gorsuch—again, both products of Leo’s vetting—recently dissented from the court’s temporary blocking of a Louisiana law that would have left the entire state with just a single doctor able to perform abortions.

In the first half of the 20th century, the police could beat confessions out of arrestees. Poor defendants had no right to a lawyer. Evidence could be illegally seized and used in prosecutions. In 1944, for example, South Carolina executed a 14-year-old black boy named George Stinney for the murders of two white girls. He was questioned alone, without his parents or a lawyer present, and convicted by an all-white jury after a two-hour trial and 10 minutes of deliberation. He wasn’t allowed to appeal. He had to sit on books to fit into the headpiece of the electric chair. Only in 2014, 70 years too late, did a circuit court judge vacate the 14-year-old Stinney’s murder conviction. The Stinney case tells you all you need to know about criminal justice in the age Leo wants to bring back.

The 1930s was of course the decade of the Great Depression, when unemployment hit 25 percent and most Americans lived in poverty. The post–New Deal court decisions Leo wishes to repudiate are the ones that gave the government the power to enact minimum wage laws, to create unemployment insurance and Social Security, to provide health insurance to the aged and destitute, and to give workers collective bargaining rights. In the 1930s, those too old to work and too poor not to could often expect a quick but painful death. This is the human toll of “limited government.”

If we’re looking for Reagan’s shining city upon a hill, we won’t find it in America’s now-distant past. Not most of us, anyway. And if it’s what Leo is promising us, we can only hope it’s not in America’s future.

Key Questions for Former Trump Campaign Manager Corey Lewandowski

Former Trump campaign manager Corey Lewandowski is scheduled to appear before the House Judiciary Committee September 17 to testify on the Trump campaign’s alleged interactions with Russian individuals during the 2016 campaign. Below is a joint post by Zinelle October, Interim President of the American Constitution Society, and Noah Bookbinder, Executive Director of Citizens for Responsibility and Ethics in Washington, exploring some of the issues likely to arise during Mr. Lewandowski’s appearance and some key questions that should be asked of him.

When former Trump campaign manager Corey Lewandowski appears before the House Judiciary Committee this week, much attention will appropriately focus on President Trump’s disturbing requests in June and July 2017 to Lewandowski. Then a private citizen, Lewandowski was instructed by Trump to tell Attorney General Sessions to limit the Mueller investigation and to fire Sessions if he did not meet with him. As Trump’s former campaign manager, however, Lewandowski is in a position to illuminate additional key unanswered questions: why did the Trump campaign dispute that Russian operatives were hacking Democratic National Committee computer systems, and why didn’t Trump campaign leaders report to U.S. authorities about then-ongoing Russian outreach to them?

Lewandowski left the campaign on June 20, 2016. In the week before his departure, the media reported that the Russian government had broken into the DNC computer system and that US officials believed Russian spies were also targeting the Clinton and Trump campaigns. Immediately, the Trump campaign responded to this account with a statement asserting the Russians had not attacked the DNC, but rather the DNC had hacked itself.

The Trump campaign’s denial of the Russian attack is mystifying for several reasons. First, to this day, after a rigorous two-year investigation by Special Counsel Robert Mueller, there remains not one scintilla of public evidence supporting the campaign’s claims. To the contrary, as detailed in Mueller’s final report and court filings between March and October 2016, Russian agencies not only intruded into the DNC computer system and dumped extracted information, they also hacked and released emails and documents of individuals associated with the Clinton campaign and the Democratic Congressional Campaign Committee.

Second, the media account of Russian intrusion occurred at the same time that Russian nationals were reaching out to the Trump campaign on multiple fronts. These contacts included notification in late April 2016 to campaign foreign policy advisor George Papadopoulos that the Russians had “dirt” on Hillary Clinton in the form of thousands of emails, and a June 9, 2016, in-person meeting between Russian nationals and Donald Trump, Jr., Jared Kushner, and Paul Manafort precipitated by a promise from the Russians of “official documents and information that would incriminate Hillary.” Given the nature and timing of these Russian contacts, the media report that Russia was targeting the DNC and both presidential campaigns should have raised alarm, not skepticism, on the part of the Trump campaign.

As a former top campaign official, Lewandowski should be able to shed light on the basis for the June 2016 Trump campaign statement challenging the public reports on Russian hacking. As part of this, he also should address what role Trump himself played in this response. Lewandowski himself has repeatedly underscored that Trump “loves to have all the information brought to him” and was the “final decision maker on everything that takes place.” Presumably, a hands-on decision-maker would have been in the loop on matters concerning the Russian interference allegations that were grabbing national headlines at the time.

Lewandowski also should address the important related issue of how he as campaign manager, his campaign colleagues, and candidate Trump considered and dealt with the national security risks posed by its contacts with a hostile foreign power. The Mueller report makes clear that Lewandowski was informed of multiple efforts by Russian nationals to engage the campaign in the spring of 2016, including:

  • Papadopoulos, between April and June 2016, repeatedly emailed Lewandowski -- along with Trump campaign advisor and current top White House aide Stephen Miller, and campaign co-chair Sam Clovis -- about contacts with Russian representatives seeking meetings with Trump and his team;
  • Even after the June 14, 2016 news accounts of Russian interference, Papadopoulos emailed Lewandowski that the Russian ministry of foreign affairs contacted him to ask whether, if Trump was unable to travel to Russia, a campaign representative could meet there;
  • In June 2016 Lewandowski responded to a request from Trump campaign advisor Carter Page for approval of an invitation from the New Economic School in Moscow for Page to speak there at a July 2016 event; and
  • Trump attorney Michael Cohen says he talked with Lewandowski during the campaign about coordinating on a potential Trump trip to Moscow, and Trump’s assistant notified Lewandowski in late April 2016 about an invitation that Trump did not ultimately accept to attend a forum that summer in St. Petersburg, Russia.

The public deserves full accountability regarding what steps Lewandowski and his Trump campaign colleagues took to inform US authorities about Russian outreach to the campaign, both before and after the press reports on Russian interference in June 2016, and any instructions he, President Trump, or any Trump campaign colleagues issued to campaign associates regarding how to respond to or report Russian contacts.

U.S. intelligence agencies continue to report that election interference by Russia and other hostile powers remains a threat to the United States, a reality underscored by recent news that the CIA in 2017 had to extract an endangered source from Moscow who had been central to understanding Russian government involvement in the 2016 attacks. As Congress, the public, and 2020 campaign officials seek to implement policies and practices that most effectively protect against future attacks, Lewandowski’s testimony should serve as a reminder that denial is a strategy that none of us should be considering.

Court Recognizes Reputational Harm to Muslims on Terrorist Watchlist

For nearly 20 years, Muslims in the United States have borne the brunt of aggressive and over-reaching national security practices.  Among the most pervasive are security screenings at airports and ports of entry.  Muslims’ experiences of being frisked, interrogated about their religious beliefs and practices, and having their electronics confiscated has become so frequent that it is referred to as “Flying While Muslim.”   

Underpinning such religious profiling is a massive terrorist watchlist comprising more than 1.1 million names, the majority of whom are Muslim and over 4,600 are U.S. citizens and green cardholders. Multiple federal agencies can nominate persons to the Terrorist Screening Center (TSC), which is responsible for vetting the watchlists.  Ninety-nine percent of all nominations are accepted, triggering serious civil liberties concerns with the lack of meaningful review. 

After years of litigation, and futile administrative complaints through the DHS Traveler Redress Inquiry Program (TRIP), the Muslim plaintiffs in Elhady v. Kable finally obtained legal relief.  On September 4, 2019, the federal district court in Virginia ruled that  the watchlisting process is unconstitutional. The absence of a pre- or post-deprivation hearing coupled with a sham administrative grievance process persuaded Judge Trenga to grant summary judgment for plaintiffs on their procedural due process claim. 

Most notable was the court’s recognition of the high reputational costs suffered by the Muslim plaintiffs, not only during travel but in other forums.  This finding is a welcome humanization of Muslims, whose dignitary and civil rights have been systematically subordinated to abstract national security interests. Whether challenging the National Security Entry Exit Registration System (NSEERS), immigration roundups of Arabs and Muslims after major terrorist attacks, or punitive detention conditions for terrorism suspects, Muslims have consistently been rebuked by courts deferential to the executive branch. 

In contrast, the court in Elhady found the plaintiffs had a liberty interest, under the Fifth Amendment Due Process Clause, in being free from false governmental stigmatization as a terrorist.  Citing the 1976 Supreme Court case Paul v. Davis, the court stated “[a] person has certain rights with respect to governmental defamation that alters or extinguishes a right or status previously recognized by state law, known as a ‘stigma-plus.’” To show stigma-plus, plaintiffs must show both a stigmatic statement and a state action that alters or adversely affects plaintiffs’ interests.  

The 23 Muslim plaintiffs filled the record with accounts of humiliating and abusive treatment by federal agents in the Customs and Border Patrol and Transportation Security Administration.  The lead plaintiff Anas Elhady was held for nearly six hours in “a small, freezing cold holding cell with bright lights,” causing him to be hospitalized. Another plaintiff, Ahmed Al Halabi, was “surrounded by armed CBP officers, handcuffed in front of his children and detained in a freezing cold holding cell for approximately two to three hours” when crossing the Canadian border by car. At least six of the plaintiffs were held at gunpoint, while their friends and families watched in horror.  And many were asked intrusive questions about what mosques they attended, what sect of Islam they belong to, and whether they study Islam full time. 

After repeated unsuccessful attempts to remove their names from the terrorist watchlist through the DHS TRIP, some plaintiffs stopped traveling outside the United States or on airplanes altogether. 

The harmful consequences of being on the watchlist extend beyond travel. The watchlist is widely disseminated to more than 18,000 state, local, county, city, university, tribal, and federal law enforcement agencies and 533 private entities through the National Crime Information System (NCIC).  As a result, people wrongly on the watchlist lose jobs. Government employers reference the watchlist for screening of employees and contractors.  So too do private employers with transportation and infrastructure functions.   

People wrongfully placed on the watch list also cannot own firearms in some states, are denied certain licenses, and have their bank accounts erroneously closed by entities that review the NCIC in their decision-making process. Citizenship and green card applications are indefinitely delayed due to an opaque FBI name check process that relies in part on the terrorist watch list.  Additionally, if someone on the watch list is subjected to a minor traffic stop, the police proceed as if they are dealing with a suspected terrorist.   

With countless Muslim names on the watchlist, pervasive false stereotypes of Muslims as violent and disloyal are corroborated to the millions of people reviewing the watchlist.  

Despite the broad adverse consequences, the standard for being added to the watchlist is vague and low.  The TSC accepts nominations to the watchlist for “an individual who is reasonably suspected to be engaging in, has engaged in, or intends to engage in conduct constituting, in preparation for, in aid of, or related to terrorism and/or terrorist activities.”  

There is no requirement that a person engaged in criminal activity, committed a crime, or even will commit a crime in the future in order to be placed on the watchlist.  Hence the decision is based largely on subjective judgments. 

Even more problematic is the TSC’s consideration of an individual’s race, beliefs, and activities protected by the First Amendment, travel history, and personal associations in evaluating a nomination.  This likely explains the over-representation of Muslims on the watchlist, including at least 4600 U.S. persons.  For these reasons, the court found DHS TRIP does not satisfy the Due Process Clause; and a post-deprivation hearing is warranted.    

A generation of Americans has come of age in a post-9/11 era where suspecting Muslims of terrorism is the norm.  Indeed, over 40 percent of Americans believe Islam is more likely to encourage violence than other religions.    Each time someone witnesses a government agent stop, detain, and search a Muslim at the border and airport, Islamophobic stereotypes are validated.   

Thus far, the courts have offered little relief for American Muslims’ pursuit of their legal and dignitary rights.  Only time will tell if the Elhady case signifies a reversal of this troubling trend or merely an anomaly. 

_____ 

Sahar Aziz is Professor of Law and Chancellor’s Social Justice Scholar at Rutgers Law School.  Professor Aziz is the founding director of The Center for Security, Race and Rights and the author of the forthcoming book The Racial Muslim, under contract with Harvard Press. 

Could Congress End Trump’s Declared Emergency at the Border?

There is much to commend in Senator Schumer’s announcement on Tuesday that the Senate will soon introduce a joint resolution to terminate the national emergency the President declared earlier this year in his effort to access funding for the construction of his border wall – funding Congress had otherwise denied. As a bipartisan group of 58 former senior U.S. national security officials made clear when the President first acted back in February, there was “no emergency that remotely justifies” the President’s invocation of the National Emergency Act (NEA) to address migration at the border. Yet the President’s pretextual emergency is now poised to have the very real effect of transferring money toward border fence repair, and away from already approved military base construction projects like schools and child care centers for military families. Senator Schumer and his colleagues are right to be troubled.

Unfortunately, the joint resolution, even if adopted, will not succeed in stopping the Administration’s bad faith invocation of NEA authority. The legislation Congress needs to solve that problem requires a bigger fix.

Enacted in 1976 for the purpose of constraining presidential recourse to emergency powers, the NEA requires presidents to declare publicly what national emergency they perceive, and to identify specifically which, among the dozens of federal statutes authorizing special powers only in the event of “emergency,” the President intends to use to address it. The Act also requires Congress to consider voting to end any declared emergency every six months, a theoretically significant requirement designed to preclude emergencies (and associated exceptional powers) from dragging on indefinitely. For the first time since the NEA was passed, and within a month of Donald Trump’s initial declaration, Congress did exactly that back March, when a notably bipartisan array of 59 Senators joined the House of Representatives in voting to terminate the emergency effective immediately.

Yet the President’s border wall emergency persists nonetheless. Why?  Because the President retains the constitutional authority to veto any joint resolution of termination, just as he could any other bill passed by Congress. The President thus unsurprisingly vetoed the joint resolution passed in March, and there is every reason to expect he will veto any resolution the current Congress passes again. Apart from any of the NEA’s other apparent failings, this reality has meant that it now takes a supermajority of Congress – enough members to override a presidential veto – to end a presidential assertion of emergency authority. For this reason among others, the NEA has long since ceased to be any sort of meaningful check on presidential authority. Rather, it now functions to ease the way for any President – acting at the height of his constitutional authority with the full imprimatur of Congress – to assert power beyond what he could successfully claim on his own.

To be fair to the drafters of the NEA, the Act as originally designed included a provision allowing Congress to terminate any presidential emergency by concurrent resolution, that is, by a vote requiring a majority of both houses of Congress, but not the signature of the President. But in 1983, within a decade of the Act’s passage, the Supreme Court ruled in INS v. Chadha that the Constitution forbids Congress from making any kind of law without following the letter of the constitutionally prescribed procedure – a procedure that requires bicameral majorities in both houses and presentment of any legislation to the President for signature. A variety of potential amendments to the NEA could improve matters: from requiring any kind of process or more specific findings to support an emergency declaration in the first instance, to imposing automatic termination or sunset requirements in the second. But despite repeated presidential declarations of emergencies since the enactment of the NEA, and nearly three dozen emergencies still in effect today, Congress has not successfully revisited the law since.

None of this is to suggest Senator Schumer’s action is in some sense counterproductive. On the contrary, with multiple challenges to the use of border wall emergency funds now pending in the courts, consistent statements reflecting Congress’ ongoing disapproval of the President’s actions may provide some modest boost to prospects for litigation success. As the Supreme Court has long recognized, presidential assertions of power in the face of express congressional disapproval “must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.” But there should likewise be little doubt that more is required of Congress to solve this problem. The present moment of bipartisan dismay at this President’s particular conduct offers a unique opportunity to do so.

Democratic Debates: Time to Ask About America’s Courts

This blog is a modified version of “Democratic Debates Round 2: Time to Ask About America’s Courts” originally published on Just Security.

America’s courts are where so many policies, issues, and freedoms are won or lost. The Democratic debates provide a crucial opportunity for the U.S. presidential primary candidates to declare what they would do in office to shore up at least the federal bench in this vital branch of our democracy.

Due to persistent overreach by the Trump administration and the Republican Party more generally, courts across the country have been forced into the role of stalwart for the rule of law. They have been forums where the fundamental rights of women, communities of color, and LGBTQ Americans have been recognized and upheld. In other instances, the courts have mostly upheld long-overdue policies like affordable health care and consumer protections enacted by Congress and legislatures.

This is progress to most, but for America’s far right, the buffering of the courts against them and the courts’ support for inclusive policies is a call to arms. One problem the far right has, however, is that all these so-called liberal policies and proposals — even the ones they strangely dub “socialist” — enjoy broad support from Americans and in the Constitution.

Large majorities of Americans, for example, support humane immigration policies and protections for “dreamers.” Similar numbers support gun control measures like universal background checks. Minimum wage laws, environmental regulations, and consumer protections are wildly popular. The same goes for the Affordable Care Act. And then there is the swelling public support for expanding voting rights and protecting our next election against foreign interference.

This same laundry list of policies that Americans routinely support also has become a hit list of policies the far right would like to block or undo.

But normal legislative pathways haven’t worked for them, so they’ve turned to the courts. An emboldened Republican Senate majority is moving aggressively to pack the courts with conservative judges ahead of the 2020 elections. The GOP and the Trump administration have installed a historic number of judges for this point of a presidency, with 150 nominees confirmed by the Senate since Donald Trump took office.

Financed by a secretive network of donors, this effort has had a demonstrable impact on the nation’s courts, resulting in an increasingly reactionary Supreme Court and business-dominated state courts, with far-reaching impacts on social justice.

And conservatives have infused the importance of the courts into their political strategy, so much so that the Republican Party now sees the judiciary and its rulings as a key voting issue.

The political left has largely ignored the change happening before their eyes. And we’re still asleep at the wheel, with many finding it distasteful to mix politics and judicial selection, even in the face of an ever-more conservative judiciary.

The results of the right’s efforts will affect virtually every issue Americans care about. As we saw in the Supreme Court decisions this year, the right’s overtaking of the Supreme Court would undo LGBTQ rights, reproductive rights, environmental protections that have cleaned up the air and water, and many federal regulations. In short, if the courts continue their right-wing march, we will be returned to an era when only white, male property owners were given full protections and freedoms.

The Democratic candidates lining up to take on President Trump should lay out their specific “Day One” plans for tackling this crisis in the courts.

Tonight is a good time to start. When the Democratic candidates face off in their third debate, moderators should raise what will be one of the most pressing issues facing the next president. They can simply ask, “Republicans in the Senate are confirming President Trump’s judges at a record pace, shifting the judiciary to the right; what is your specific plan for countering that trend?”

Americans are clamoring for courts that understand that the Constitution of “We the People” has been greatly undermined, and want judges with a core commitment of advancing democracy, equality, and the rule of law for all, including those not previously included as “the People” under past interpretations of the Constitution.

Courts and Climate Science: The Need for Scientific Education Among Judges

"Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passions, they cannot alter the state of facts and evidence." ~ John Adams

A recent exchange between Senior D.C. Circuit Judge Raymond Randolph and D.C. District Judge Emmet Sullivan offered a glimpse into the unfiltered perspective of a federal judge, and serves as a stark illustration of the need for scientific literacy in the judicial community. At a time when our legal system is hearing increasingly complex cases involving climate science, we need a judiciary that will rule based on facts and the law, not preconceived notions or partisan skepticism.

Judge Randolph’s Attack on Climate Science

On August 16, the Washington Post reported that Judge Randolph lashed out at Judge Sullivan after Sullivan shared information regarding an upcoming educational seminar for federal judges on climate science. In an accidental reply-all message, Judge Randolph sent an irate response, attacking Judge Sullivan for “subjecting our colleagues to this nonsense” and declaring “the supposedly [sic] science and stuff you are now sponsoring is nothing of the sort.” He also threatened to report Judge Sullivan to the ethics committee, apparently deeming the sharing of an educational event to be an impropriety.

The so-called “nonsense” event was sponsored by the Federal Judicial Center, the congressionally established education and research center of the federal courts, and intended “to meet judges’ need for basic familiarity with climate science concepts” by “provid[ing] neutral, objective information to the judiciary about the science of climate change as it is understood by the expert scientific community.” In a subsequent message, Randolph doubled down on his criticism of the event, stating “I continue to disagree with [the Federal Judicial Center’s] conclusion about the propriety of the program” and later arguing to a colleague that attending the event would “lend credence to one side of the climate change debate that is quite improper.”

While climate denial may persist in the public sphere, among the scientific community the debate about the existence and cause of climate change is resolved. There is overwhelming evidence concluding that the earth is warming and human activity is the primary contributor. These are not arguments to be litigated in a courtroom, they are fixed truths upon which increasingly complex cases are being built. But as the wave of climate change litigation grows, will Judge Randolph and others like him allow their personal climate skepticism to influence their judicial decision-making?

Judge Randolph retains the right to be a climate denier in his personal capacity, but concerns arise when his refusal to accept scientific evidence appears to impact the outcome of his cases. And his record causes such concerns. Judge Randolph authored the D.C. Circuit decision in Massachusetts v. EPA that held the EPA had the discretion to not regulate greenhouse gases under the Clean Air Act. Judge Randolph fixated on questioning the science of climate change and misrepresented the National Research Council’s findings that the causal link between greenhouse gas emissions and climate change could not be “unequivocally established,” a standard that scientists also fail to establish for the theory of gravity. The Supreme Court overturned his decision two years later.

Judge Randolph also shoehorned his skepticism towards climate science into an unrelated 2015 First Amendment case, pondering, “If the government required labels on all internal combustion engines stating that “USE OF THIS PRODUCT CONTRIBUTES TO GLOBAL WARMING” would that be fact or opinion? It is easy to convert many statements of opinion into assertions of fact simply by removing the words ‘in my opinion’....” Disregard for science is not a judicial philosophy, it’s judicial misconduct, and the failure of judges to keep up with scientific consensus over the years has had serious consequences . Coincidentally, Judge Randolph’s hypothetical draws close comparison to tobacco litigation, the history of which provides insight into the future of climate change litigation, and the impact of judges rejecting science.

Looking to the history of Tobacco Litigation for guidance

The link between serious health effects and tobacco was noted as early as the 18th century, and scientific breakthroughs in the 1920s and 30s drew the specific connection between smoking and lung cancer. By the early 50s the causal connection to lung cancer was considered a scientific certainty, both in academia and within the tobacco industry’s own research. When the first major lawsuit was filed in 1954, legal experts at the time believed it would be the first in a series of lawsuits to take down the tobacco companies. Instead, through the use of medical experts disputing the facts, legal experts disputing the law, and lobbyists blocking reform, the tobacco industry enjoyed 300 legal victories until their first major loss in the courtroom, in 1992.

Today, we are seeing the beginnings of a broad range of climate change lawsuits that seek to take on fossil fuel companies in a manner quite similar to the tobacco industry. And those who are quick to point to dismissals of some of the initial nuisance cases should consider those 300 tobacco cases diligently fought over the course of  nearly fifty years.

Conclusion

Lawsuits centered on climate change are not going away anytime soon, and a basic understanding and acceptance of climate science and its causes is the first step for judges to appropriately address the increasingly complex litigation. It is a fundamental responsibility for our judges to equip themselves with the knowledge to responsibly hear these cases. Judge Randolph is not alone in his climate denial, but the science of climate change will not make way for the conveniences of political beliefs. Ignorance of the facts may be an excuse in common law, but it’s no excuse for a federal judge.

Until we reach a resolution, I suggest adopting the wisdom of Justice Breyer:

“In this age of science, we must build legal foundations that are sound in science as well as in law. Scientists have offered their help. We in the legal community should accept that offer.”