The gang of lower court judges that is interfering with President Trump’s executive responsibilities, is not unique. 

It is hard to find a judge who can separate politics and law, or emotion and feeling, from thinking and understanding. 

Legal objectivity and neutrality are just ideals.

Former federal appellate judge Richard Posner, appointed by Ronald Reagan, wrote a book called “How Judges Think.” He argues that judges behave based on the system they work in. 

This is true to a certain extent.  Judges are government employees who work in government-run businesses (and courts are businesses).  Judges also support the system they are in, which is made up of the Bar and its lawyers. The Bar and the Bench are also effectively self-regulated.  It is hard to get the Bar to discipline one of its own, or to get a Judicial Review Board to do much about its own judges.

But there is another problem. 

Judges really don’t get paid to think. They follow rules and procedures of the courts they work in. They take direction from their staff and clerks. If they use any “legal reasoning,” they may take a look at what other judges did in some other cases.  

They also worry about their caseload, their efficiency ratings, the risks of being overturned, their promotions and retirement, and even their “electability.”

If they happen to step outside the bounds of tradition or the status quo, it is because they are being encouraged, directed, rewarded or protected to do so. 

Judges are not risk-takers, and they are not entrepreneurs.  They are followers. That is what precedent is all about.

Since there is a deep symbiosis or common culture, among all the lawyers, judges, clerks, congressmen and politicians, most with legal backgrounds, their loyalty is to this tribe.

The glue that holds it all together as a closed cultural system, is the law school.  It defines, protects and perpetuates legal culture, legal tradition, legal systems, and legal symbology.

Because law schools are set up as graduate professional schools, they hold out a career path, and one that can achieve high remuneration, competitive prestige and rewards.  This means that being “clever,” is highly valued. It is antithetical to restraint. This includes even technically bypassing the law, which law schools call “work-arounds.”  And because they are also trained to defend crime by finding rationale, excuse, deniability, and dozens of theories of defense, it is not hard to imagine a certain sense of entitlement among judges and their clerks.  

Sometimes acting above the law can be thought a higher discretion of their trained judgement, justified by the inherent nature of “living law” and their professional status to freely determine what that is, rather than restricted by what it is not. Legal restraint is replaced by legal supremacy.

This is where some judges get into trouble, because now they can turn to liberal abstractions of equity, fairness, and justice, which law schools hold out as their highest calling, even their duty: they then become a judge in their own cause.

Symbology and self-delusion play a big part in this problem.

Like doctors in white coats, with degrees, oaths, hospitals, other doctors, and the trappings of authority and professionalism all around them, judges are in black robes, with law diplomas, oaths, flags, ornate, elevated benches, and all the trappings of their authority and prestige. 

In both cases, a slippery slope is created that can lead to the exact opposite of what they ethically stand for, and include systematic corruption, and even crime, often without fully recognizing or admitting it (see Robert Jay Lifton’s celebrated psychological analysis, “Nazi Doctors,” and Judge Jerome Frank’s brilliant “Courts on Trial”).

The judges who are attacking President Trump may be mendacious, corrupted, or even incompetent, but they likely believe that they are still serving a higher social purpose within their purview, or that they can defend by a preponderance of partisan political support, that somewhere in their behavior is an argument, cause, rationale or duty.  

They learn this craft of self-delusion in law school, which more than law, teaches legal psychology, and conditions their mind.  They are then constantly bombarded with reinforcement by their own trade. It is entirely self-referencing.

That is how the voting citizen, their representatives, and institutions, can be left out of the constitutional equation of representative government.  They are not part of this closed legal system, which has also closed itself off from the other branches, from public accountability, and from consent. It operates by the logical fallacy of assertion.

Term limits, third-party, independent judicial disciplinary power, and reduction and privatization of some government courts are part of the solution. 

As for graduate law schools, most would provide better training from a more compressed, very practical curriculum of basic subjects, over a shortened period, and reinforced with applied business, rather than blinded by political ideology.

Matthew G. Andersson is the author of the upcoming book “Legally Blind,” and has been featured in the Wall Street Journal, New York Times, Washington Post, and the National Science Foundation.  He has testified to the U.S. Senate and is a graduate of the University of Chicago.

Image: Samir Luther, via Flickr // CC BY-SA 2.0 Deed