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Attorney General

Sessions blasts judicial activism and deposition order in case on census citizenship question

Attorney General Jeff Sessions/Shutterstock.com.

Attorney General Jeff Sessions said in prepared remarks on Monday that “judges are not sent from Olympus,” and the idea that they must act with empathy is “heresy.”

Sessions said judges aren’t all-knowing, and too many think it is their right and duty to act on their sympathies and policy preferences. Judicial activism is a threat to representative government and is “fundamentally undemocratic,” Sessions said.

The prepared remarks are here, and video of the speech, delivered to the Heritage Foundation. is here. The National Law Journal and the Washington Post have coverage.

Sessions singled out nationwide injunctions blocking executive branch policies and “invasive discovery into executive branch deliberations” as particularly troubling.

Twenty-seven district courts have issued nationwide injunctions since President Donald Trump took office, yet none were issued in the nation’s first 175 years, Sessions said. Sessions quoted Justice Clarence Thomas, who wrote in a concurrence in the decision upholding Trump’s travel ban that nationwide injunctions prevent legal questions from percolating through the federal courts and make every case a national emergency.

Sessions criticized a judge’s order requiring Secretary of Commerce Wilbur Ross to be deposed about the decision to include a citizenship question on the 2020 census. The judge wants to probe Ross’ motives, but “the words on the page don’t have a motive; they are either permitted or they are not,” Sessions said.

The government has asked the U.S. Supreme Court to block the deposition order, issued by U.S. District Judge Jesse Furman of New York. The 2nd U.S. Circuit Court of Appeals at New York found no abuse of discretion in an Oct. 9 opinion that cited a preliminary showing of bad faith or improper motive.

Internal executive branch deliberations are legally irrelevant in the vast majority of cases, Sessions said, and they deserve the same respect given to preliminary drafts of judges’ opinions or conversations with law clerks.

“But an increasing number of judges are ignoring the boundaries and view themselves as something akin to roving inspectors general for the entire executive branch,” Sessions said.