To try to make sense of the courts’ approach to Trump’s speech using free speech principles is to invite mystification. Instead, we should look to external political factors that influence judicial decision making. Professors Daniel Rodriguez and Mathew McCubbins explain: “Because judges act in the middle of a political process and are not the end point, they must act strategically to get what they want. That is, judges must anticipate how other political actors will react and must take these reactions into account.” Under some interpretations of this theory, often called the “strategic decision-making” model, commentators suggest that judges trick themselves into believing their own hackneyed rationales. Judge Richard Posner once asserted that “[j]udges have a terrible anxiety about being thought to base their opinions on guesses or their personal views. To allay that anxiety, they rely on the apparatus of precedent and history, much of it extremely phony.”

Source: Courts Aren’t Impartial or Apolitical. Trump Is Using That to His Advantage. | Truthout