UC Press Blog

By Reynolds Holding, author of Better Judgment: How Three Judges Are Bringing Justice Back to the Courts

This is republished with permission from the author from their Substack "Better Judgment."

As much as the U.S. Supreme Court has embarrassed us with its subservience to a tyrannical presidency, the federal trial courts have generally done us proud.

Dismissing Donald Trump’s lawsuits against law firms as “pernicious” and “cringe-worthy.” Rejecting his administration’s halt to funding university research as the “wrath of a government committed to its agenda no matter the cost.” Refusing to tolerate the government’s “gamesmanship or grandstanding” in illegally deporting immigrants.

Recently, we again saw the courts at their best – and, sadly at their worst.

William Young, a federal judge in Massachusetts appointed by President Reagan, ruled that the Trump administration had violated free-speech rights by systematically silencing non-citizens with threats of deportation if they protested on campus in favor of Palestinians. His opinion was fierce, moving – and clever.

It began with a scanned image, a scrawled threat he had received in June that delivered a sinister message: “Trump has pardons and tanks. … What do you have?” His response “Alone, I have nothing but my sense of duty. Together, We the People of the United States – you and me – have our magnificent Constitution. Here’s how that works out in a specific case—”

Young then proceeded over 161 pages to lambaste Trump and his minions for trying to “strike fear” in protestors and their supporters. He berated immigration agents for wearing masks that were meant “to terrorize Americans into quiescence” and brought to mind “cowardly desperados and the despised Ku Klux Klan.” With an unequivocal response, he answered the question – “perhaps the most important ever to fall” within his jurisdiction – of whether noncitizens in the U.S. legally have free-speech rights: “Yes, they do.”

“The First Amendment does not draw President Trump’s invidious distinction,” he continued, “and it is not to be found in our history or jurisprudence…While the president naturally seeks warm cheering and gladsome, welcoming acceptance of his views, in the real world he’ll settle for sullen silence and obedience.”

Clear and timely and true, these are words of a judge at his best.

Now for the worst.

Judge Aileen Cannon. You remember her. She stalled and ducked and generally did everything within her considerable power to ensure that Donald Trump would never be held accountable for willfully absconding to Mar-a-Lago with classified documents. Last week, it wasn’t what she did that drew notice, but what, as is her wont, she didn’t do.

On Monday, the Knight First Amendment Institute asked a U.S. appeals court to order Cannon to release special counsel Jack Smith’s report on his investigation into the documents case. The judge had tossed the case in July 2024 because, in her view, Smith’s appointment was unconstitutional. Smith appealed her decision but dropped the investigation after Trump’s 2024 election because presidents may not be prosecuted while in office. Smith did write the report, however, and submitted it to Cannon, but she blocked its public release because she did not want to prejudice other defendants named in the case – a case that she had dismissed, that Smith had dropped, that the Trump Justice Department will never pursue, and that is positively, absolutely dead.

So last February, the Knight institute first asked the judge to release Smith’s report because the public has the constitutional right to see court records. And surely these are important records to see. But Cannon has not responded. In fact, she has sat on the request for more than 220 days and counting. The institute argues, with good reason, that the delay is “manifestly unreasonably,” and has asked the appeals court to get involved.

The chances that the court will order Cannon to cough up the report are not high, because the institute must show that there is an indisputable right to the report and duty to hand it over and no other way to get it. But Cannon has not challenged the institute’s arguments. She has said nothing. How can we interpret her silence as anything other than more stonewalling by a political creature masquerading as a judge and beholden to Donald Trump?

I admire federal trial judges – so much that I have just come out with a book — Better Judgment — about them. They do the real work of the judiciary, having the last word in the hundreds of thousands of cases each year that Supreme Court grandees will never see. And at this perilous moment, many of them are about the only people in public life standing up for the rule of law against a lawless president. They are heroes.

They are flawed heroes for sure and, in some cases, deeply so. But by and large, Republican and Democrat, they are giving us hope, and they are doing it with dignity rather than rancor.

At the end of his opinion, Judge Young wrote that he hoped the author of the anonymous threat would find the opinion helpful and thanked him or her for writing. “It shows you care,” the judge concluded. “You should care.”