A weekly accounting of the rogues and scoundrels of America

Over Labor Day weekend, Trump-selected judge Aileen Cannon ordered the appointment of a special master to review the material seized by the Justice Department from Mar-a-Lago—a move that will allow the president to delay the ongoing investigation. It’s a result that everyone with half a brain could have spotted from a million miles out: Trump sought out the judge most willing to bend the rules in order to help him wriggle his way out of trouble.

But this didn’t prevent many legal experts from reacting with slack-jawed shock to Cannon’s order. “This special master opinion is so bad it’s hard to know where to begin … her analysis of standing is terrible,” tweeted law professor Neal Katyal. “Judge Cannon’s order is riddled with fundamental legal errors and is the opposite of judicial restraint,” added lawyer Ted Boutrous. Former FBI agent and Just Security editor Asha Rangappa insisted that “Cannon clearly did not have a strong grasp of the salient issues.” The Atlantic’s Andrew Weissmann ran down the many ways in which Cannon’s decision was “untethered to the law.” Former Nixon White House counsel John Dean quote-tweeted Weissmann, writing “It’s a mess!” Everywhere you looked someone was reacting in similar fashion: But … how could she?

To answer that question, we need to get the experts caught up on current events. It should be apparent to everyone by now that the conservative legal movement and its foot soldiers in the judiciary have ideological goals in mind and a political agenda they want to pass via the superlegislature once known as the judicial system. But many members of the judicial commentariat seem to be stuck in the world they remember, not the world we live in now. To these experts, the right is still beholden to the law—it still needs to tick the appropriate jurisprudential boxes, consider long-standing legal precedent, and follow the established rules.

With that in mind, the experts look at Cannon’s decision and see balderdash everywhere. What they don’t get is that Cannon looked at her balderdash and thought, “Well, who’s going to stop me?” There are no “judge cops,” you see, only other judges, and if all roads eventually lead to the Roberts court, there’s no reason for her to worry too much about whether she’s stuffed a bunch of legal half-assery into her rulings. As TNR’s Matt Ford has reported, Cannon’s hardly the first lower court judge to indulge herself in some right-wing hackery. She won’t be the last.

The Supreme Court has led the way with decisions that are increasingly untethered to judicial precedent, the Founders’ ideals, and in some instances, the very facts of the cases on their dockets. Because of this, conservatives have been generally emboldened to stake more aggressive claims in their suits and filings, in order to test the limits of preposterousness, like velociraptors pushing against the weaknesses in Jurassic Park’s fencing. That is why even though a lawsuit to take down President Joe Biden’s student loan forgiveness plan suffers from some fatal standing issues, Texas Senator Ted Cruz is said to be “brainstorming” a workaround. He knows that he’s as likely to prevail with nonsense as he is to succeed with some supergenius-level lawyering.

So then, what is the plan? As TNR’s Simon Lazarus argued, liberals must forcefully discredit the legal arguments that the Supreme Court’s conservative bloc is offering while there’s still time to rebut them. But as Lithwick and Stern point out, the most immediate solution to this dire problem is one that Democrats have been heretofore skittish about contemplating—adding judges to the courts.

The good news for now, though, is that we can begin by adding judges at the lower court level, where the much larger case backlog justifies such a move, and hopefully avoid the all-but-certain national mainstream media–driven trauma that would follow any attempt to pack the Supreme Court. Increasing the number of judges in these venues could help the jurisprudential traditions that are now being gutted gain a new foothold and lessen the opportunity for conservatives to forum-shop their way to victory. The bad news, of course, is that unless Democrats are planning on holding both houses of Congress, Biden only has a few weeks left to do the job.

— Jason Linkins, deputy editor

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—Jason Linkins, deputy editor