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The U.S. Court of Appeals for the 7th Circuit on Thursday refused to halt[2] a district court order against Donald Trump’s mobilization of the National Guard in Illinois. Its decision means that the Trump administration may not deploy the Guard into Chicago, a major blow to the president’s efforts to flood the city with troops under his command. Although the 7th Circuit gave “substantial deference” to the commander in chief’s views, it found no credible evidence to support his claim that widespread violence currently plagues the city. The Justice Department sought an emergency stay from the Supreme Court in a Friday afternoon filing[3].

On this week’s Slate Plus bonus episode of Amicus[4], co-hosts Dahlia Lithwick and Mark Joseph Stern discussed the 7th Circuit’s remarkable rebuke of the administration—and what it may reveal about a mounting judicial backlash[5] against both Trump and the Supreme Court that’s enabled him. A preview of their conversation, below, has been edited and condensed for clarity.

Dahlia Lithwick: This is another one of those amazing decisions from an appellate panel that just wouldn’t accept that acts of protest and civil disobedience happening on the streets are a “rebellion” just because the president keeps yelling “rebellion.”

Mark Joseph Stern: Yes, and it’s important that this was a cross-ideological panel—Judges Ilana Rovner, David Hamilton, and Amy St. Eve. Judge Rovner is a left-leaning George H.W. Bush appointee[6]. Judge Hamilton is an Obama appointee. Judge St. Eve is a Trump appointee, and while she’s not MAGA, she’s very conservative. What links these three, I think, is that they were all district court judges before they were elevated to the 7th Circuit. And they understand something that the Supreme Court’s Republican appointees don’t get: Fact-finding is the province of the district court, first and foremost, and higher courts generally have an obligation under the law to defer to those findings unless they were clearly erroneous. Here, the panel ruled, the district court was not clearly erroneous when it held that there’s no rebellion, insurrection, or mass chaos on the ground. Thus, there is no legal justification for Trump to send the National Guard into the streets of Chicago.

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But the panel also said that even if there were more violence in Chicago than the district court found, the protests still wouldn’t necessarily constitute a rebellion. I think its reasoning is worth quoting:

We emphasize that the critical analysis of a “rebellion” centers on the nature of the resistance to governmental authority. Political opposition is not rebellion. A protest does not become a rebellion merely because the protestors advocate for myriad legal or policy changes, are well organized, call for significant changes to the structure of the U.S. government, use civil disobedience as a form of protest, or exercise their Second Amendment right to carry firearms as the law currently allows. Nor does a protest become a rebellion merely because of sporadic and isolated incidents of unlawful activity or even violence committed by rogue participants in the protest. Such conduct exceeds the scope of the First Amendment, of course, and law enforcement has apprehended the perpetrators accordingly. But because rebellions at least use deliberate, organized violence to resist governmental authority, the problematic incidents in this record clearly fall within the considerable daylight between protected speech and rebellion.

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So the panel acknowledges that there have been sporadic and isolated acts of violence. But it also says that doesn’t automatically transform largely peaceful protest into an unlawful rebellion that authorizes the president to mobilize the National Guard over the opposition of the states. There is a gap between a protest that has flashes of violence and a rebellion or an insurrection. And so long as what’s happening in Chicago stays on one side of that—even if it occasionally goes past what’s protected by the Constitution—that does not give Trump a license to send in the Guard. That is a powerful legal and rhetorical point that I hope the Supreme Court will embrace. It is, I think, dead right about how we should frame this question. Trump wants the courts to say that as soon as one person has thrown a punch, even in a crowd of 10,000 peaceful protesters, there’s a rebellion that he can ruthlessly put down with federal troops. And here the 7th Circuit is saying that cannot possibly be right.

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I want to pull together a couple of the themes that have become pretty crystalline in what you’re describing. We’re looking at judges across the ideological spectrum—Trump judges, Obama judges, Federalist Society judges, young judges, old and distinguished judges—who have never picked up their pen to speak out on political matters. And across the board, they’re in agreement about what is happening. They’re naming it. They’re saying: I refuse to be gaslit today. And they’re calling it unlawful. 

I guess I’m wondering if it was an unforced error by the U.S. Supreme Court to treat lower courts—their findings of fact, their efforts to do hard doctrinal work under unbelievably challenging circumstances—with hostility or overt contempt. I find myself wondering if the court, particularly over the summer, made a lot of enemies by using dismissive rhetoric, and now in a lot of ways emboldening judges to say: Not today, Satan. Don’t lie to me.

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I would give you a tentative yes. Tentatively, because at the end of the day, the Supreme Court can still do whatever it wants. So I’m hesitant to say that anything was an “error,” because even if the lower courts are in full rebellion, the Supreme Court gets to bench-slap them and smack them down however and whenever it wants. That said, I do believe that we are starting to see some conservative judges on the lower courts bristle at the way that the Supreme Court is treating them and their colleagues. Judges like St. Eve and other Republican appointees on the district courts who are trying their level best to deal with a very complex set of facts and laws in a super limited time span. Think of Judge Karin Immergut, a Trump appointee, who said there was no rebellion[8] or insurrection in Portland.

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It seems to me that the Supreme Court has fomented an “us vs. them” dynamic with the lower courts. It’s presenting itself as the final arbiter of all facts on the ground, ignoring its obligation to defer to what the district court believes is happening in the real world. The Supreme Court has decided: We know everything, we have a crystal ball, we are omnipresent and omnipotent. That arrogance doesn’t just offend the lower courts’ egos—it undercuts the work they see as their duty, especially the careful establishment of facts. So when the Supreme Court treats fact-finding as optional, maybe judges like St. Eve respond by making it decisive. They’re not just fact-checking, they’re reality-checking.

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That, to me, shows that maybe the Supreme Court has screwed up here. Yes, the Trump administration might still win at SCOTUS. But it will lose weeks in the process. Those will be weeks during the appeal when the administration can’t send the National Guard into Chicago at this moment because lower courts are standing in its way. Maybe if the Supreme Court had shown more respect for the lower courts, then judges like St. Eve wouldn’t be pointedly deferring to a district court’s factual findings that essentially call Trump a liar. That’s just my guess. But if lower court judges really are turning against the Supreme Court, I think it does hurt the administration’s ability to run these shock-and-awe campaigns at a moment’s notice like they want to. Because lower courts can freeze them in their tracks.

Right, it’s sand in the machine. I think it’s worth saying that the Supreme Court’s disrespect for facts is twinned with its inscrutable orders on the shadow docket. Then the justices pitch a fit when the courts below don’t understand how to apply these orders written in invisible ink. That’s the one-two punch here.[13]

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