The Supreme Court is facing a legitimacy crisis as its ongoing legal revolution becomes more and more alarming to a public unhappy about its recent rulings on abortion and gun rights. But there’s another legitimacy crisis brewing, one that can be seen vividly in Judge Aileen M. Cannon’s extraordinary rulings in the case involving Donald Trump’s hoarding of documents at his Mar-a-Lago resort.
Cannon, who was appointed by Trump despite her thin experience, has been almost comically eager to help the former president. Her appointment of a special master to review documents seized in the FBI search of Mar-a-Lago was greeted with shock and ridicule on substantive grounds and was widely seen as a means of delaying the case as long as possible.
But Cannon’s latest intervention on Trump’s behalf is particularly disturbing. I want to focus on one part of the order she gave Thursday, because it speaks to how we believe courts are supposed to work and how those foundations of the justice system are being warped.
Trump, true to form, has been making fantastical claims about how victimized he has been at the hands of law enforcement. Among other things, he has said the FBI may have planted evidence at Mar-a-Lago to incriminate him.
So special master Raymond J. Dearie — who was suggested by Trump’s attorneys and agreed to by the government — essentially told the Trump team to put up or shut up. He instructed them to clarify whether they’re challenging the government’s inventory of documents collected at Mar-a-Lago. Would they make an official statement alleging documents were planted, or would they accept that the inventory is accurate?
This put them in an awkward position — the same awkward position Trump attorneys have been in before. Their client is the most notorious liar in the history of American politics. But in court, the rules are different than on Fox News or Truth Social.
Unlike in places where people engage in freewheeling debate about public issues, courts have strict rules and expectations that participants must follow. A key one is that lawyers can’t just toss around wild claims; if they’re going to make an important assertion to a judge or a jury, they have to have evidence for what they’re saying.
In case after case after the 2020 election, Trump attorneys such as Rudy Giuliani and Sidney Powell rolled into court with rumors, speculation and hearsay about widespread election fraud. Again and again, they were shot down by judges telling them it wasn’t enough to say they heard about a guy whose cousin’s girlfriend’s neighbor said he saw a van with a Joe Biden bumper sticker idling behind the board of elections building. Without evidence, they lost.
But Cannon swooped in to save Trump’s lawyers from the embarrassment of contradicting their boss. She overruled Dearie, allowing the lawyers to avoid taking a position on whether the inventory is accurate. Given the chance to draw a bright line marking the integrity of what goes on in court, she did the opposite.
This may seem like a small thing. But it’s a direct assault on the idea that the courts are a venue where fairness prevails precisely because there are strict rules everyone has to follow, rules designed to get to the truth.
Almost two years after Trump left office, the poison he injected into the courts with the appointment of a long list of hack judges is becoming more clear. It’s increasingly difficult to look at important court cases of recent days and believe that whether you like the outcome, the procedures have been fair, the judges have worked to be objective and the integrity of the courts is intact.
Judges such as Cannon undermine a cornerstone of the legitimacy of the court system: the idea of “procedural fairness.” This topic has long been of interest to judges and lawyers, and research has found that people’s perceptions of whether they were treated fairly is often just as important as the outcome in determining their feelings about the process.
So how is the public supposed to believe we have procedural fairness in our court system when Republicans go shopping for a Trump judge who’ll strike down any law, regulation or presidential decision they disagree with — and so often succeed? When a case involving potential criminal actions by the former president is heard by a judge he appointed, a judge who will barely try to pretend she isn’t in the tank for him?
The Supreme Court gets the most news, and its conservative majority has shown they have few limits on their policy ambitions (and they’re just getting started). But if the whole court system is losing its legitimacy, it isn’t because the public is being too cynical. It’s because they know exactly what they’re witnessing.