What does it mean to resist?

Although I’m reluctant to tout my forecasting skills, I successfully predicted months ago that the United States of America would face renditions, and although I did not want to be right, and would have given every cent I own not to be right, it is equally a statement of fact that both immigrants and even U.S. citizens have been detained and rendered (though not always abroad). 

In my mind, there’s no doubt that these renditions are illegal in every conceivable sense. Let’s start with the face that they many, such as this one, are being carried out by “officials” without uniforms, in unmarked cars or vans, with masks, in public or at traffic stops or even in private homes, which means these “officials” are effectively kidnapping human beings, some of whom have no outstanding arrest warrants, all in broad daylight. 

What is happening in our country resembles fact-patterns that occurred in South America during the 1970s, 80s, and even early 90s in the case of Chile, and this is the best-case scenario. I’ll speak from experience as a scholar who wrote her undergraduate honors thesis about the Guerra Sucia (or Dirty War) in Argentina, in which the Madres de La Plaza de Mayo (or mothers of the Plaza de Mayo) were labeled as “locas,” or crazy, for factually reporting and protesting their children’s disappearances. (Incidentally, many women who have represented threats to institutions are wrongfully portrayed as crazy and it is a statement of fact that Freud himself was reluctant to even call his patients “hysterical” until he was leaned on by his male doctor colleagues to tar and feather his non-compliant female patients whose only mental health issues were being victims of trauma, but I digress. . .) 

The fact remains that it’s not a credible claim to say the United States is a functioning democracy. Important members of Congress and judges have been threatened or arrested and even a Supreme Court Justice abstained from an important ruling on renditions. (I speculate that Justice was afraid, though it was a per curium decision, but as previously discussed privacy is a fiction, and it’s possible this Justice’s identity could have been determined by Donald Trump.) 

This is just a guess, but many people are on the record as being afraid, including people in the Republican party itself. Lisa Murkowski, a Republican member of Congress, though obviously not a member of the MAGA movement, publicly told her constituents that they were right to be afraid. Many members of the elite, including persons with extreme privilege, are also afraid. Speaking out is a risk, and is it is also a responsibility for members of the legal profession in my view. If no one speaks up, then what remains of democracy isn’t worth saving. 

Before I took a turn into math and physics and game theory, I was a First Amendment scholar and clinician, and the First Amendment is being turned upside down by the Trump Administration. The Supreme Court is in general profoundly pro-First Amendment (though for a great critique of racial and gender skewing in First Amendment cases, I refer you to a First Amendment critic at GW named Mary Anne Franks), with many scholars stating that we’re at risk of returning to the Lochner Era.

This seems borne out, but not in the sense that any constitutional law scholar could have predicted. Wealth inequality abounds, and as the rich get richer and some poor people have to finance their groceries, silence echoes among many places of power just like in Argentina or Chile, where the dictatorships benefitted the wealthy and even middle class. Despite Trump’s tariffs, and his current refusal to cave, I do not consider it likely the economy will collapse (though I’m not an expert in Wall Street, I do know about banks). I predict in the future that awaits, even if it’s the worst possible timeline in the words of Mark Lemley, that the economy will be okay, and that either Trump will be forced to eat his words by banks or the U.S. Supreme Court, given his legally unsupportable position on tariffs. And how a Court of Appeals temporarily thought otherwise, I simply do not understand, but I think even the conservatives on the U.S. Supreme Court are sufficiently pro-business not to cave to Trump on this issue, with the possible exceptions of Alito and Thomas. 

In the event the Supreme Court rules against Trump and he has not already eaten his words on tariffs, whether he choses to obey the Supreme Court is an open question, and I sincerely hope he complies, because if he doesn’t, they’ll be a fork or branch in the timeline of our democracy. I’ve never wished to be more wrong about what happens if the Supreme Court takes the case (it will), and if it will rule against him (I predict it will), and if Trump doesn’t comply (that one I couldn’t say), but that’s why I’ll be time and date stamping all my posts henceforth so everyone can fact check me and see for yourselves. 

 

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My blog policy is that my posts going forward are static, but that if I make a factual mistake or analytic error, I’ll let readers know, exactly like the New York Times. However, unlike the Times, I won’t broadcast any corrections to typos or minor copy edits that I might need to make (though trust me, I’ve also caught typos in the Times and didn’t witness the Times publicly correct these either). What’s good for the Times is good for me, even if I’m just a junior scholar and I don’t have a legal defense team, but given I am currently only writing opinion pieces and personal essays about my life, it shouldn’t matter. In the best possible timeline, I’ll later also break news stories, but not right now, and if and when I do, I’ll certainly hire a premier First Amendment law firm to vet me and defend me against what would be frivolous lawsuits, and I’ve written an entire article about those. Trust me, frivolous lawsuits are a bad idea, and Federal Rule of Civil Procedure 11 or state-law equivalent sanctions are often the result. I commend interested readers to my article cited by First Amendment icon Lyrissa Lipsky, called Defamation 2.0.

-Cortelyou C. Kenney (6/3/2025 9:09 am PT)