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Trump Judges Won’t Stop Whining About Cancel Culture

Slate logo Slate 8/11/2021 Mark Joseph Stern
Lincoln Borglum, Donald Trump are posing for a picture: Donald Trump at Mt. Rushmore, where he delivered a campaign speech condemning ”cancel culture.” SAUL LOEB/Getty Images © Provided by Slate Donald Trump at Mt. Rushmore, where he delivered a campaign speech condemning ”cancel culture.” SAUL LOEB/Getty Images

Donald Trump and his allies spent much of the 2020 campaign fomenting Republican fear of “cancel culture” to whip up votes against Joe Biden. He decried the alleged crisis in many speeches, accusing Democrats of wielding “cancel culture” as a “political weapon” against their enemies—a tactic he described as “the very definition of totalitarianism.” This gambit did not carry Trump to a second term, but his followers have carried on the crusade in the halls of Congress, on Fox News, and wherever else Trumpism remains alive and well. One bastion of Trumpism today, of course, is the federal judiciary, which is dominated by the 234 judges the former president installed on the bench (including one-third of the current Supreme Court). Some of these judges have taken up the mantle of Trump’s campaign against cancel culture, transforming judicial opinions into Tucker Carlson–style rants against political correctness. The nation’s federal courts are declaring war on wokeness.

The most recent skirmish in this battle arrived on Tuesday, in a decision partially upholding Iowa’s “ag-gag” law. Like half of all states, Iowa has tried to prevent undercover investigations into factory farms—where animal cruelty is rampant—by prohibiting journalists, whistleblowers, and activists from entering these facilities. Iowa’s law outlaws access to farms under “false pretenses” and criminalizes false statements made to secure employment, since investigators frequently pose as job applicants. The 8th U.S. Circuit Court of Appeals upheld the access ban but struck down the employment provision as a violation of the First Amendment.

One member of the three-judge panel was Steven Grasz, a Trump nominee rated “Not Qualified” by the American Bar Association due in part to his “passionately-held social agenda” that “appeared to overwhelm and obscure the ability to exercise dispassionate and unbiased judgment.” Grasz wrote separately to express his reluctance to uphold the access ban, criticizing the Supreme Court’s “limited and sometimes hazy precedent” regarding false speech. This concern is fair, even commendable. But Grasz then veered off course. “At a time in history when a cloud of censorship appears to be descending,” he wrote, “along with palpable public fear of being ‘cancelled’ for holding ‘incorrect’ views, it concerns me to see a new category of speech which the government can punish through criminal prosecution.”

Leaving aside, for a moment, the propriety of whining about cancel culture in a legal opinion, what, exactly, does Iowa’s law have to do with being “cancelled”? This case does not involve anyone facing repercussions for expressing unpopular views; it is about lying in the service of undercover investigations. You could say that animal rights activists are being “cancelled” (i.e., imprisoned) for “holding ‘incorrect’ views” (i.e., lying for journalistic purposes). But that would be a very strange way to talk about an ag-gag law. Perhaps Grasz has grown so alarmed by cancel culture that it is the only lens through which he can view all First Amendment disputes. Or maybe he simply sought to shoehorn his own anxiety around wokeness into a two-page concurrence about something else. Either way, Grasz’s fixation infects his legal analysis, muddying his legitimate apprehension about Iowa’s attack on newsgathering.

Compared to Stuart Kyle Duncan’s anti-woke screed, though, Grasz’s analysis constitutes fine judicial craftsmanship. Duncan, who serves on the 5th U.S. Circuit Court of Appeals, is one of Trump’s most noxious nominees; he gained notoriety last year a nasty opinion that disparaged and willfully misgendered a trans litigant. In June, Duncan dissented from a 5th Circuit decision allowing a student to sue her former teacher for an alleged First Amendment violation. The Supreme Court ruled long ago that public schools cannot force students to recite the pledge of allegiance. In this case, the teacher seems to have been infuriated by a student’s refusal to recite the pledge, and attempted to retaliate by forcing her to write down the pledge instead. (He also engaged in extended diatribes accusing the student of anti-American sentiment and forced her to listen to Christian music in class.) The student sued, and the teacher asked the 5th Circuit to throw out the case.

By a 2–1 vote, the 5th Circuit refused to do so, allowing the dispute to go to trial. Duncan penned a furious dissent charging the majority of, in short, appeasing liberal snowflakes. “We live in an easily offended age. Even Dr. Seuss is controversial,” he wrote, citing the Seuss estate’s decision to stop publishing certain titles featuring racial stereotypes. Duncan speculated that, under the majority’s view, a student could sue her teacher over an assignment requiring her to write the opening lines of the Declaration of Independence.

“The words teem with occasions for offense: they are arguably sexist (‘Men’) and religious (‘Creator’), and were written by a notorious slaveholder,” the judge wrote. He added that a teacher might be sued for requiring his students to transcribe Martin Luther King’s “most famous speech”—specifically, the passage that states: “I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character.” (In reality, King did not endorse color-blindness as a remedy to racism, and this particular quote has been ripped out of context to warp its true meaning.)

“Today, this aspiration of colorblindness has come under fire,” Duncan continued, citing Ibram X. Kendi’s How to be an Antiracist, a popular target of the moral panic over critical race theory. Then, for good measure, Duncan pointed to the conservative activist Christopher F. Rufo’s work reviling critical race theory. While forcing a student to transcribe the pledge poses no constitutional problem, the judge declared, provisions of California’s “ethnic studies curriculum” flagged by Rufo may violate students’ religious liberty.

This opinion marked the first of at least two occasions on which Trump nominees to the 5th Circuit have bashed critical race theory. In July, James Ho—an overt partisan who often pens Fox News–style commentary thinly veiled as legal opinions—vilified Kendi, as well as the entire field of critical race theory, in similar terms. That same month, Ho also charged Don Willett, a fellow Trump nominee, with supporting “a woke Constitution” by questioning legal impunity for violent police officers.

It’s not just Trump judges who rail against whatever Laura Ingraham hates most at the moment. The trend extends to judges nominated by previous Republican presidents, too. When the 10th U.S. Circuit Court of Appeals prohibited a website designer from discriminating against same-sex couples, the dissenting Judge Timothy Tymkovich compared the decision to George Orwell’s 1984. He denounced Colorado’s LGBTQ anti-discrimination law as an “Orwellian diktat” and bemoaned that “it seems we have moved from ‘live and let live’ to ‘you can’t say that.’” A George W. Bush nominee who appeared on Trump’s SCOTUS shortlist, Tymkovich does not have a reputation as a bomb-thrower. But he now seems eager to join the ranks of jurists who deem wokeness a threat to the republic.

Moreover, conservative grievances over the woke wars aren’t limited to querulous concurring opinions in lower courts; they’re also seeping into the law. Last term, the Supreme Court heard Americans for Prosperity v. Bonta, a challenge to a California law that required the disclosure of high-dollar charitable donors to the state attorney general. During oral arguments, the court’s Trumpiest justices—Neil Gorsuch, Sam Alito, and Clarence Thomas—fretted over the impact of this disclosure rule. Gorsuch asked whether California bureaucrats might force “private associations” to turn over “their Christmas card lists” to the state. Alito complained that anti-gay activists faced not just but physical violence “economic reprisals,” citing “the well-known case of Brendan Eich,” who resigned as Mozilla’s CEO due to his donations in support of Proposition 8. (In November, Alito delivered a speech to the Federalist Society warning that anti-gay Christians were being canceled.)

Thomas outdid them both. “In this era, there seems to be quite a bit of loose accusations about organizations,” he said, “for example, an organization that had certain views might be accused of being a white supremacist organization or racist or homophobic, something like that, and, as a result, become quite controversial.”

All six Republican-appointed justices ultimately voted to invalidate California’s law. Although it doesn’t use the words “cancel culture,” the 6–3 decision bristles with agitation over our allegedly censorious political climate. The majority was so appalled by the prospect of wealthy donors facing public criticism that they rewrote the First Amendment.

Just 11 years ago, Justice Antonin Scalia scorned the very concept of a constitutional right to anonymous association: “Requiring people to stand up in public for their political acts fosters civic courage,” he wrote, “without which democracy is doomed.” Today’s conservative judges see things differently. Many seem to have gone all in on Trump’s anti-woke mania, littering their opinions with ominous warnings about the silencing of unpopular views. These polemics create the impression that their legal analysis has been corrupted by political grudges against perceived progressive excesses. When judges start to sound like obsessive cranks yelling at the TV, it’s reasonable for Americans to ask whether they still deserve the presumption of legitimacy.


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