In a largely unnoticed, or at least adequately considered, speech last month, Attorney General Jeff Sessions loudly complained to an audience at The Heritage Foundation a venue with a substantial home court advantage for this Administration about a Federal District Judge sitting in Brooklyn, New York.

Judge Nicholas Garaufis, in a matter pending before him, had challenged the governments decision on how to implement the Administrations decision to end DACA, which threatens to remove innocents whose only sins were being born to parents who sought to be among the huddled masses yearning to breathe free. He told government lawyers: You cant come in here, into court, to espouse a position which is heartless . The judge thus had the temerity, explained Sessions, to question the Justice Departments heartlessness in how it chose to shut the program using that precise word: heartless.

To be fair to the Attorney General, I should quote him exactly:

[The wind down of DACA] is a straightforward question of law. But rather than address that question, the court said the government cant come into court to espouse a position that is heartless. Not unlawful, but heartless.

With respect: it is emphatically not the province or duty of courts to say whether a policy is compassionate. That is for the people and our elected officials to decide. The courts role is to say what the law is.

A judges comments on policy like this are highly offensive, and disrespectful of the Legislative and Executive Branches. Judges have the solemn responsibility to examine the law impartially. The Judiciary is not a superior or policy-setting branch.

So when you consider it, General Sessions wasnt bothered by the judge challenging the compassionateness of the governments actions. The Administration had apparently made a decision ideologically in line with its bases view of a particular immigrant population. Rather, Sessions was bothered by the Court inserting itself into whether the governments policy decision of mass expulsion was offensive. Essentially, he was saying that judges shouldnt get involved in doing anything else besides deciding if an administrations policy complies with the Constitution or relevant statute.

Basically, he argues, that a judge should keep to himself, and eliminate from his internal decision-making process, his private view that the governments policy is abhorrent. (In essence, judge, be the automaton we selected you to be!) In doing so, he ignores reality and the teaching of the iconic Justice Benjamin Cardozo, who wrote years ago: The great tides and currents which engulf the rest of men, do not turn aside in their course, and pass judges by.

Asked by this writer, in a totally unrelated context, and specifically not with respect to DACA or any pending case, about a judges role in invoking his personal feelings, Judge Jed S. Rakoff, sitting in the Southern District of New York and is hardly shy in stating his views of certain government actions pending before him, said this:

On the broad issue you raise, two points seem to me obvious: The first is that a judges job is to interpret the law and then apply it to the facts of the case before him, even if the result is personally distasteful to him. But, second, where there are two reasonable interpretations of the law available to the judge and one leads to patently repugnant results while the other does not, a court is free to infer, in the absence of evidence to the contrary, that the legislators intended the result that was not so plainly repugnant. In short, justice must be blind but not intentionally cruel.

Putting aside the philosophical divide over DACAs wind down between the Administration, on the one hand and Judge Garaufis on the other, and putting aside use of the word heartless, do we really want a System deprived of a judges ability to hold up a mirror to a government litigator, as if to say: Does the government really see this as necessary to carry out the governments purpose? Dont we want experts judges nominated by a president, vetted and confirmed by the Senate to be able to offer their opinion over what an administration intends to do?

Those more intellectually-inclined than this writer might argue that the courts are actually intended to be Anti-Majoritarian: that it is their duty, even if not articulated in the Constitution, to be a block or at least a thoughtful filter against a popularly-elected administration. In other words, if the Majority has spoken out in electing a particular president and congress so that the president finds comfort indeed, support in executing a policy that the Minority finds offensive, should a court called upon to decide that policys validity be able to point to (perhaps, even espouse) the Minority position?

Judicial opinions and dissents are ripe with these challenges. One readily relevant example is the Supreme Courts 1944 decision in Korematsu v. United States that upheld the executive order allowing the military to exclude persons of Japanese ancestry from certain locations within the U.S. deemed critical to national defense.

In clear-eyed hindsight, no one today justifies that decision. But no one really remembers the dissents written while the U.S. was embroiled in World War II against Japan. Justice Robert H. Jackson later the chief Nuremberg prosecutor (a patriot, to be sure) began his dissent saying that no person challenged Korematsus loyalty to the United States (his place of birth). He, then (Anti-Majoritarian-ly), concluded that military edicts should not be followed if unconstitutional. Justice Frank Murphy, in his separate dissent, went farther. The exclusion goes over the very brink of constitutional power, and falls into the ugly abyss of racism.

Why did Justice Murphy use his phrase the abyss of racism? He did so precisely because he saw value in expressing not only to the litigants particularly, the Justice Department but also to all those who would ultimately read his views, the deep problem with what the government had chosen to do. And likewise Judge Garaufis, in his comments from the bench. Maybe General Sessions doesnt want the courts to be a brake on what the executive determines that it alone is best-equipped to decide. But in using the word heartless, Judge Garaufis was asking the government to take a harder look at exactly what it was doing, whether the government wanted to hear it or not.

Make no mistake, General Sessions wants Judge Garaufis indeed, all judges to get out of the Administrations way. Hearing that the Administration was heartless was the last thing he wanted to hear. But perhaps it was the exactly what needed to be said indeed, by the court.