By Professor Maureen Duffy 

 -- George Orwell, 1984. 

Storytelling in Law and Politics

It can be difficult sometimes to separate the political from the legal. They are often mingled, and one has such an impact on the other that attempting to completely cut out one can undermine an assessment of the other. These narratives often overlap and affect each other, but they are also not always the same. For an interesting discussion of some of these connections in Canada, see here. 

In current U.S. political discourse, the seemingly ridiculous cannot be entirely discounted. I write this as a dual U.S.-Canadian citizen, a lawyer from the U.S. who is now a law professor in Canada. I have just returned from an appointment as a visiting professor of law in Texas. I am acutely aware of the political narratives from my home country about Canada becoming the “51st state” and of our Prime Minister as “Governor.” Such narratives are bizarre, and obviously disrespectful, but they contain an undercurrent of threat that cannot be ignored, especially in light of the persistent spouting of such commentary. Expanding on the quote used above, Orwell wrote: “[a]nd if all others accepted the lie which the Party imposed— if all records told the same tale—then the lie passed into history and became truth.” A glance online shows that there are people espousing this false narrative about Canada and expressing outrage at those who do not. 

Actions are amplifying the sense of threat from this political narrative. An obvious example is the on-again, off-again, on-again, (maybe) off again tariffs imposed on Canada, and now the talk about reassessing a treaty while the U.S. President falsely claims there is a discrepancy over delineation of the Border. The political story leads to the legal story, as questions arise as to what the legalities are behind the U.S. President’s statements or escalating actions. The legal then may evolve and affect the political, and on and on.

U.S. President Donald Trump (“Trump”) wrote “LONG LIVE THE KING” in a social media post that was describing an action he took as President. The White House account on X then repeated his quote with a fake picture of Trump wearing a crown, which I have posted above. I would not discount that as mere political nonsense, given developments regarding Canada. With extensive political fears about Trump’s plans to act as “dictator,” justified or not, even a joke in this context is strange and concerning. 

Much of my scholarship has focused on narratives and storytelling, emphasizing the place where political narratives impact legal norms and where legal norms impact political narratives, and on what happens when the two evolve together. Political figures are well aware of the power of controlling the narrative. 

When the underpinnings of those narratives are flawed, but not adequately interrogated, they can solidify into accepted “truth,” fueling problematic developments in both the political and the legal. This is the point where I insert a shameless reference to my book, Maureen Duffy,  Detention of Terrorism Suspects: Political Discourse and Fragmented Practices. I explored some of these themes in considerable depth in relation to the ways that jurisdictions like the U.S., Canada, and the UK changed constitutional norms for special practices regarding terrorism detentions after the 9/11 attacks, based on demonstrably problematic narratives. 

While the current factual context is different, the themes remain the same. The political realm within the U.S. is starkly polarized, often delving into the extreme. This is compounded in the current climate with talk of Trump as dictator or king. For that to happen, much would have to change, including that the courts and Congress would have to have renounced their constitutional roles. The U.S. Constitution lays out powers of each of the three branches of the federal government, to allow a system of so-called “checks and balances.” The courts are continuing to act as a check on Executive power, as some commentators have acknowledged. Political narratives of Trump as king or dictator are negated by the reality of what is happening in the courts, but they should still be taken seriously.

The Problematic “Conservative” versus “Liberal” Discourse and the U.S. Courts 

In the public, and often in legal, commentary, those who support Trump’s actions will be deemed to be “conservative,” for example. One could successfully argue that Trump’s politics are not, at all, conservative. Those who oppose Trump’s actions are labelled as “liberal,” even though one could successfully argue that the current Democratic party is far from liberal. Some conservatives do not support Trump and some liberals do. It is especially strange for those who might agree with some things and disagree with others, as the label attached to the individual might vary with the issue, instead of the substantive points driving the debate. 

Once people are slotted into these categories, nuance is lost, and conversation, much less persuasion, becomes impossible. These labels are extended to legal developments. Even when talking about the Supreme Court of the United States (“SCOTUS”), for example, there is a suggestion that Justices are either “conservative” or “liberal,” based on how they were appointed, and that they should vote in blocks accordingly. That sort of assumption has often proven untrue, of course. Justice Sandra Day O’Connor, appointed by then-President Reagan, became famously known, throughout her career, as a swing vote and not a block-voting conservative, as her appointment might have suggested. Since Trump took office, there have been two 5-4 decisions blocking some of his initiatives, with Justice Roberts and Justice Coney Barrett, both considered “conservative,” joining the so-called “liberal” justices. 

The lack of nuance has been immediate, as Justice Coney Barrett, appointed by Trump, has been especially attacked for this, with “conservative” commentators now questioning the credentials they praised at the time of her appointment.  Some have called her “a DEI hire,” which is, itself, a deeply problematic narrative tool. One “conservative” commentator actually called her “evil,” saying she was appointed because “she checked identity politics boxes.”

Problematic narratives about the Court have arisen from the so-called “liberal” camp as well, with an assumption that Justices appointed by a conservative or a liberal president cannot assess cases on their merits. Some commentators have suggested, or at least insinuated, that the Court is currently corrupted and thus virtually non-existent as the head of the third branch in the constitutional checks-and-balances scheme. In the early days after her appointment, so-called “liberal” commentators also questioned Justice Coney Barrett’s credentials, with some suggesting, or at least implying, that she was not very bright. Justice Coney Barrett cannot seem to win in the political realm, which may actually suggest that she is doing something right (as much as I have almost always disagreed with her). This extraordinary battle of narratives took a turn just before the posting of this blog, when Trump defended Justice Coney Barrett against the recent attacks by “conservative” commentators. 

The commentary on Justice Coney Barrett, of course, raises its own narrative questions, as women face different narratives in the public sphere than do men, demonstrating a thread of sexism in the discourse. The “conservative” versus “liberal” narratives have also subjected her to attacks from both camps because she has not always followed one thread or another. The personal commentary on SCOTUS Justices too often evades the merits of what they are saying in their actual rulings. 

The individuals who serve on SCOTUS may be relevant in their own right, in some extreme circumstances. Such political attacks on individual Justices, though, which vary, depending on their decisions, may also create false impressions of the Court overall, and, in themselves, may undermine the Court’s legitimacy. A generally more valid critique of SCOTUS involves addressing flawed and problematic decisions, which every Court has issued in its time. This Court certainly has. 

My own critiques of recent SCOTUS decisions are extensive, and likely to follow in future posts. My critiques of Justices are more likely to be based on the reasoning applied in a given decision, or on longer-term themes in their reasoning, as some of them have judicial views on a larger scale with which I do or do not agree from a legal perspective. 

The Impact of False Narratives About the Courts 

As I already mentioned, SCOTUS has ruled twice since Trump took office to block some of his initiatives. Such a ruling would not be possible if the stark conservative-versus-liberal narratives are accepted, or if the Court was, indeed, corrupted. I am not suggesting that, had these two decisions been different, the opposite point would have been proven, just that their existence undermines this claimed dichotomy. This is only one example. It is undoubtedly true that some judicial positions may be more what is considered to be conservative or liberal, and some decisions may just be (and have been) poorly reasoned, but this does not mean that the Court has been corrupted or that it would favour a political figure without any consideration of the underlying rationale. 

Beyond that, U.S. courts more generally are functioning, and there are quite a large number of legal challenges pending to various Executive actions. These actions proceed more slowly than the President is currently proceeding with significant changes, but that is the nature of such responses. Most of these cases are still working their way through the court system. It cannot be fairly suggested that the courts have abdicated their constitutional role, when there are, in fact, a large number of pending legal actions, and courts are already ruling on some of these larger issues. One federal judge, for instance, admonished the President for an overreach of power, while reversing one of his recent firing decisions. The judge wrote “[a] president who touts an image of himself as a ‘king’ or a ‘dictator,’ perhaps as his vision of effective leadership, fundamentally misapprehends the role under Article II of the U.S. Constitution.” 

I have been using two resources that are very helpful in tracking the numerous legal actions being brought regarding various presidential decisions. No doubt there are more. One is a listing by Court Watch, which is updated regularly, linked here. The other is a listing kept by Just Security, which updates by date and other information on the cases, linked here. 

Reading through both lengthy lists of current legal actions should put to rest any notion that the courts are not functioning to review actions by the Executive Branch. I am far from losing my ultimate faith in existing constitutional structures, in the courts, and specifically in SCOTUS. These views could change depending on what happens. That is ultimately the nature of commentary. 

This post does not suggest that all is well in the U.S., as I do not believe that to be the case. It does suggest, however, that the courts are operating in their constitutional roles, however imperfectly at times. There is some pessimism about the ultimate role the courts can or will play, and there is also some sense that courts are serving as the “last guardrail” for democracy. Speculation abounds as to what would happen if the President ignores a judicial ruling, but that remains mere speculation at this point. The courts have absolutely, in my view, gotten it wrong in some instances, and they may have paved the way for some of the current excesses. That, though, is a different point for a different post. 

Things are developing quickly, and much may change. As of today, however, there are still no kings in the U.S.