Too few people have recognized the deeply principled step taken by California Chief Justice Cantil-Sakauye last week. On Thursday, she wrote to Attorney General Jeff Sessions to urge on behalf of her State's judiciary that he rein in ICE to prevent the shameful use of state courts as bait to entrap vulnerable immigrants. She explained:

As Chief Justice of California responsible for the safe and fair delivery of justice in our state, I am deeply concerned about reports from some of our trial courts that immigration agents appear to be stalking undocumented immigrants in our courthouses to make arrests.

While carefully and correctly acknowledging the paramount federal role in immigration matters, the California Chief Justice rightly noted the basic constitutional responsibility of the States to keep their courts open to all who seek to vindicate their rights under state or federal law:

Our courts are the main point of contact for millions of the most vulnerable Californians in times of anxiety, stress, and crises in their lives. Crime victims, victims of sexual abuse and domestic violence, witnesses to crimes who are aiding law enforcement, limited-English speakers, unrepresented litigants, and children and families all come to our courts seeking justice and due process of law. As finders of fact, trial courts strive to mitigate fear to ensure fairness and protect legal rights. Our work is critical for ensuring public safety and the efficient administration of justice.

Most Americans have more daily contact with their state and local governments than with the federal government, and I am concerned about the impact on public trust and confidence in our state court system if the public feels that our state institutions are being used to facilitate other goals and objectives, no matter how expedient they may be . . .

This administration has already shown its readiness to ride roughshod over the States in matters like sanctuary cities, despite a professed—but paper thin—belief in federalism (thus far manifest mainly in efforts to let states strip racial minorities of the right to vote).  Evidently, President Trump and his attorney general have few federalist compunctions about exploiting immigrants’ need for simple justice in local courthouses in order to ensnare those very same immigrants in the harsh labyrinth of a merciless federal deportation machinery.

To be clear, this is not only hypocritical, but also inhumane and un-American.  The vast bulk of the justice dispensed in this Nation is meted out by state and local judges, in cases of all descriptions—from divorce and custody and domestic abuse matters to minor neighborhood squabbles, traffic accidents, drug offenses, and murder prosecutions. Immigrants, including those of uncertain status, are persons entitled to due process and the equal protection of the law. Turning courthouses into beacons of fear can only destroy lives, communities, and the rule of law.

The State's Chief Justice will no doubt be criticized for taking the unusual step of protesting to the U.S. Attorney General, but critics will be misguided if they claim impropriety on the Chief's part.

The hierarchy of federal-state power renders the state judiciary powerless to interpose itself physically between ICE agents and the supplicants for justice those agents entrap. What state judges can and should do, however, is voice their determined opposition to that underhanded tactic, as the Chief Justice of California has admirably done. As she reminded Sessions:

The federal and state governments share power in countless ways, and our roles and responsibilities are balanced for the public good. As officers of the court, we judges uphold the constitutions of both the United States and California, and the executive branch does the same by ensuring that our laws are fairly and safely enforced. But enforcement policies that include stalking courthouses and arresting undocumented immigrants, the vast majority of whom pose no risk to public safety, are neither safe nor fair. They not only compromise our core value of fairness but they undermine the judiciary’s ability to provide equal access to justice.

In times like these, state courts may play a more important role than ever in upholding constitutional values. Sometimes they may do so in particular cases, but sometimes they may be called upon to speak publicly about threats to the integrity of their systems for serving the demands of justice. Respect for the rule of law demands no less.  

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