Our Constitution empowers the Supreme Court to yell stop

Charles writes in his individual capacity. The opinions expressed here do not necessarily reflect those of his employer.

The U.S. Supreme Court will first review an act of President Donald Trump's leadership on April 25 in Trump v. Hawaii. Trump mooted his first order banning immigrants based on nationality by issuing a second ban. When injunctions against the second ban were briefed and set for argument in the Supreme Court, Trump mooted that ban with a third he calls permanent. The third ban, too, has been enjoined.

Lately I have been honored to be lead writer for 36 appellate lawyers on a brief of amicus curiae in Trump v. Hawaii. While we filed our brief to support Hawaii, we do not literally argue the respondents should win. Rather, we argue the rule of law must win, which favors the respondents in tone and on the constitutional issues.

First, the greater the power of the presidency -- not just Trump -- to declare law unilaterally, the closer the Supreme Court should scrutinize the president's acts.

Second, when the Constitution or congressional delegation authorizes presidential autocracy, everything the president says on the subject of unilateral legislation -- in campaign, on the golf course, by tweet, or in official documents -- is grist for the mill of the high court when it interprets or determines the validity of that legislation.

Consider how a once-vibrant and independent judiciary became complicit with populism and a would-be autocrat to foster evil after the collapse and annexation of the rule of law in 1933 and 1934 as the Weimar Republic became the Third Reich. In January 1933, German judges swore an oath to their constitution, much like American judges pledge today. Within 18 months, they swore an oath of personal loyalty to Adolf Hitler.

No German judge protested as Jewish judges, then Jewish lawyers, were purged.

The German judiciary assimilated itself into the Third Reich, presided over the destruction of its own independence, and subordinated itself to authoritarian leadership. While a few judges resisted the Nazi Party regime extrajudicially, only one can be documented to have refused to accept a Nazi Party decree as German law; he was given early retirement.

In the end, all the crimes prosecuted at Nuremberg were lawful acts under German law, enforced by German judges.

The American republic has dangerous connections with German history. Before the Nuremburg laws, the nation with the world's most racist laws was the United States. The Nazis studied American immigration law, de jure and de facto relegation of African-Americans to second-class citizenship, and state prohibitions of interracial marriage. The latter served as a model for parts of the Nazi Blood Law.

The Supreme Court's nadirs are opinions imbued with racism: Dred Scott, Plessy and Korematsu. Contrast those with opinions that stand up to presidents acting like autocrats: Youngstown Sheet & Tube, United States v. Nixon, Hamdi v. Rumsfeld, and somewhat belatedly, Loving v. Virginia.

Our amicus curiae brief urges the high court to stand against the risks of autocracy, particularly when connected with racial or religious bias. We show Trump's will to autocratic power by his own words.

Presidents John F. Kennedy, Ronald Reagan, George W. Bush and Barack Obama have all invoked John Winthrop's image of a city on a hill as their vision of the United States. The middle classes founded our republic by revolution, largely to install the rule of law through their own judicial and legislative branches.

The forces of democracy defeated European and Asian fascists in World War II. In peace, the United States and allies proved themselves superior to Communism to rebuild the battlegrounds, and wore down the Soviet Union.

Autocracy, rule by one person, is the opposite of the rule of law. Autocracy is surging in today's world. Viktor Orban is turning Hungary from a post-Soviet democracy into a strongman state. His model is Vladimir Putin. Other elected leaders have evolved into autocrats without Communist history -- Rodrigo Duterte and Recep Tayyip Erdogan for example.

The press frequently chose the label "populist" for many of today's autocrats and their followers. The populist philosophy is to serve the common person against a corrupt elite -- think of ordinary Californians against railroad-controlled government.

But populism does not imply autocracy. Perhaps autocrats deliver modest gains in prosperity, but they do not empower ordinary people. Instead, corruption and oppression always come with autocracy. The autocrats and their cronies are the corrupt elite, to whom their subjects trade away liberty and self-determination.

Into this world of phony populism comes Trump, self-appointed speaker for the common man and admirer of autocrats. And both pollsters and political scientists say that increasing numbers in younger generations are indifferent to autocracy.

We are not indifferent. Most people old enough to be seasoned appellate lawyers have personal experiences living in a world with powerful autocrats. Some fled to America from such regimes. Others' parents or grandparents did so. Those with long American connections have experiences that range from duck-and-cover drills in school to armed combat.

In 1955, William F. Buckley defined a conservative as someone who stands athwart history yelling stop. Appellate lawyers and judges are conservatives, regardless of our views on social and political issues. We believe in the rule of law. We believe the appellate process is at the apex: Decisions come from deliberation on reasoned arguments and arrive in public statements justifying the results. We strive to exemplify the city on the hill.

We cannot ignore the German lesson. Appellate process is an opposite of autocracy only when practiced by lawyers and judges with the courage to stand in front of corruption, even when packaged as a popular movement, and to yell stop. We hope the Supreme Court recognizes this.

In the Proposition 8 case, Chief Justice Ronald George wrote for a majority explaining why even benignly motivated officials cannot refuse to follow the law. When the rule of law breaks down, minority groups, the unpopular, and the powerless have the most to lose.

A president who refuses to follow the law for a supposedly good or popular cause takes on the mantle of an autocrat. Our Constitution empowers the Supreme Court -- and history teaches it -- to yell stop.