David Cole is the National Legal Director of the ACLU and the Honorable George J. Mitchell Professor in Law and Public Policy at the Georgetown University Law Center. His most recent book is Engines of Liberty: How Citizen Movements Succeed. (May 2018)
Jeff Sessions has dramatically transformed the Justice Department, effectively causing it to renege on its historic mission of defending civil rights. He has fiercely defended the administration’s most unconstitutional initiatives, including a blatantly anti-Muslim immigration ban and a policy of denying teenage immigrants in federal custody access to abortion. He has reversed his own long-standing support for state’s rights to attack cities and states that have chosen, as is their constitutional prerogative under the Tenth Amendment, to leave enforcement of federal immigration law to federal officials. He is poised to overrule an immigration court decision that victims of domestic abuse and gang violence may obtain asylum here, an action that could turn away thousands of abuse victims each year. And he has overseen the appointment of a large number of deeply conservative—and overwhelmingly white and male—federal judges.
The Crisis of the Middle-Class Constitution: Why Economic Inequality Threatens Our Republic
by Ganesh Sitaraman
White Working Class: Overcoming Class Cluelessness in America
by Joan C. Williams
To live in the era of President Donald Trump is to witness, sometimes on a daily basis, wide-ranging and unprecedented assaults on basic constitutional norms. But if Ganesh Sitaraman, the author of The Crisis of the Middle-Class Constitution, is right, the greatest threat to our democracy may be the tax …
When David Mullins and Charlie Craig walked into Masterpiece Cakeshop, a bakery in Denver, Colorado, five years ago, they had no inkling that the encounter would take them to the United States Supreme Court. All they wanted was a wedding cake.
The Supreme Court has sometimes deferred to the political branches on matters of immigration and national security policy, but never on religious bias. And the constitutional case against the travel ban is overwhelmingly strong. The Establishment Clause of the First Amendment not only prohibits the government from making any law “respecting an establishment of religion,” it also forbids the government from singling out for disfavor any particular religion. Yet that is precisely what Trump’s travel ban does.
In a weak democracy, an authoritarian leader like Trump could do widespread and lasting damage. Such leaders often control the legislature, are immune from court oversight, and suppress civil society institutions. But our hallowed traditions of judicial independence, civil liberties, and a robust political culture have—thus far, at least—held Trump in check to an important degree. The courts cannot stand up to President Trump alone, however, and it would be a great mistake to think they could. In the end, the most important guardian of liberty is an engaged citizenry.
The travel ban won’t be the only big case before the Court next term. It’s a heady line up, and the news that Justice Anthony Kennedy will not retire—at a time when, given the Oval Office’s current occupant, the judiciary’s check on the executive branch is more essential than ever—is important.
On May 20, Jeff Sessions completed his first hundred days as attorney general. His record thus far shows a determined effort to dismantle the Justice Department’s protections of civil rights and civil liberties. Reversing course from the Obama Justice Department on virtually every front, he is seeking to return us not just to the pre-Obama era but to the pre-civil-rights era.