Why do judges wear black robes? It’s a question few judges today seem to be asking themselves.
It certainly appears not to have troubled the mind of Chief Judge Roger Gregory of the Fourth Circuit Court of Appeals who, it seems, must instead be a student of Jorge Luis Borges. A couple of days ago, Judge Gregory, writing for the majority, upheld a lower court’s decision against President Trump’s revised Executive Order imposing a temporary travel ban from a handful of countries identified as hotbeds of terrorist activity. As Byron York points out, the decision broke 10 to 3 along partisan lines: the 10 judges who decided against the travel ban were appointed by Presidents Clinton or Obama, the 3 judges who supported the ban were appointed by one of the Bushes.
The rank partisanship on display is as disgusting as it is worrisome: a partisan judiciary is not a judicious judiciary. It is, on the contrary, a judiciary that dispenses its decisions based not on what you have done or left undone but on who you are. It is a government of men, not laws.
But the most extraordinary thing about the majority decision is not its partisanship but the personal nature of the opinion it expresses. It applies to Donald Trump and to Donald Trump only. As York notes,
The majority’s decision, as laid out by Gregory, suggests a mind-bending possibility: If the Trump executive order, every single word of it, were issued by another president who had not made such statements on the campaign trail, the court would find it constitutional.
This is where Borges comes in. In “Pierre Menard, Author of Don Quixote,” Borges celebrates the stupendous labor of a man who endeavored to produce a book that would be identical—”word for word and line for line”— to Cervantes’ great novel. Menard never managed more than a fragment. But Borges is surely right that though “the text of Cervantes and that of Menard are verbally identical,” the works are in fact very different. For one thing, what was written in the seventeenth century by a Catholic ex-soldier is of necessity very different from what was written in the twentieth century by a cosmopolitan, world-weary intellectual. Their different personal histories infuse their words with very different assumptions. Then there is the matter of style. “The archaic style of Menard . . . suffers from a certain affectation. Not so that of his precursor, who handles easily the ordinary Spanish of his time.” Borges spins an amusing and thought provoking epistemological tale with this fiction.
Until yesterday, I hadn’t appreciated its application to the workings of the judiciary. Judge Gregory enlightened me about that. In his opinion for the court, Judge Gregory charges that although the travel ban invokes national security, “in context” it “drips with religious intolerance, animus, and discrimination.”