A Lesson in Kayfabe

While we wait and pray for a SCOTUS smackdown

This past weekend, World Wrestling Entertainment (WWE) put on Wrestlemania 41 at Allegiant Stadium in Las Vegas. For those of you who don’t know – and I suspect most subscribers to the Sentencing Matters Substack don’t – Wrestlemania is the premier annual professional wrestling event for WWE. [Prove me wrong by leaving a comment if you’ve ever seen Wrestlemania or if you’re a periodic viewer of professional wrestling.] It’s the Super Bowl of professional wrestling, and it’s held each year now in a football stadium.

At this year’s Wrestlemania, Cody Rhodes, the undisputed WWE champion and self-proclaimed “American Nightmare,” took on John Cena, who recently staggered the wrestling world, becoming a heel in what WWE calls “one of the most shocking moments in WWE history.” A heel is a wrestling villain, often narcissistic and sadistic with all kinds of grievances. Cena had been a face – short for “babyface” – for many years, and like most faces, he was a determined, hard-working, patriotic, good guy. Cena has 17 world WWE titles after last night’s win, a record one better than the 16 held by Ric “the Nature Boy” Flair. Last year, 60,000 people attended Wrestlemania in Philadelphia’s Lincoln Financial Field, and millions more watched via livestream and pay-per-view. It looks like last night’s event was about the same.

It’s no secret that President Trump is a big fan of professional wrestling and that he owes much of his ethos, inspiration, and success – political and otherwise – to it. The President was an active participant in WWE for decades. His relationship with Vince and Linda McMahon, the co-founders and leaders of WWE, is deep, longstanding, and real. Linda is now the Secretary of Education and was head of the Small Business Administration in Trump’s first term. Trump has hosted and appeared at Wrestlemania several times, was part of the WWE Battle of the Billionaires at Wrestlemania back in 2007, and has internalized the way wrestling storylines are crafted and then play out.

I happen to have grown up with WWF, the precursor of the WWE. I’m not particularly proud of it. It just so happened that cable TV first came to New York City, where I grew up, because of the way skyscrapers block TV signals, and early New York cable programming included canal cuarenta y siete, el canal de los grandes espectáculos (channel 47, the channel of great spectacles). The lineup included lucha libre, the WWF, and my friends and I were hooked. Imagine four eleven-year-old boys in an Upper East Side apartment dancing around in front of a 15-inch TV set and then slamming each other with pillows in a simulated suplex.

Back in the 70s, the line between faces and heels was much clearer. Heels were often ethnic and national stereotypes, like Nikolai Volkoff, a Russian heel, who had a longstanding feud with the consummate face, longtime WWF champion Bruno Sammartino. Of course, today, who knows whether Volkoff would be a heel or something else; who knows if Russia is an ally or adversary? The lines between heels and faces has blurred over the years, which says something about our national character and explains much of the political realities of our times.

But one thing hasn’t changed about professional wrestling since the 70s, and that’s kayfabe. Kayfabe is the tacit agreement between wrestlers and fans to suspend disbelief. I’m not sure what it is about the human condition. But somehow, magically, when we enter into that agreement, it creates a genuine emotional connection between wrestlers and fans. The wrestlers present a product that is clearly fake but always with the insistence that it’s very real. And we, the fans, buy it. Kayfabe means that wrestlers, referees, managers, and commentators can never break character, for if they do, the magic will disappear in an instant, and with it, the very real connection.

President Trump, his politics, and his political base embody kayfabe. Misinformation is part of the foundation, but the power is in the impenetrable insistence of its truth. Trump can never admit that he lost the 2020 election. He can never retreat from his belief that Article II grants him complete policymaking power over the United States. He can’t back down from his claims that his economy is the greatest economy ever or that “tariff” is the greatest word ever, or that Elon Musk is a great patriot. And he can never admit that he ought to lift a finger to bring home Kilmar Armando Abrego Garcia, who was mistakenly deported to El Salvador last month despite a court order expressly forbidding him from being sent there. It’s all part of the show. And it’s part of this magical relationship with supporters. For those who don’t support the President, it’s simply mystifying.

All of this, including understanding kayfabe, matters for us because there is a constitutional battle raging at this very moment, one that seems like the most important one of our lifetimes. Some people want to call it a crisis. That may come when the fight is over. But for now, its ongoing, right before our eyes, right now. And in this fight, misunderstanding the way Trump and his legal team embody kayfabe means enabling them more and more, putting our constitutional order at greater risk, and moving a bit closer to that crisis.

For so many in the legal profession and in other intellectual circles, professional wrestling seems uncouth, lacking the manners, decorum, and refinement which at least at one time was part of our professions and which many of us want to believe in still. Fourth Circuit Judge J. Harvie Wilkinson is one. He still believes in the gentlemanly and professional norms. Wilkinson came from a distinguished Richmond, Virginia family, attended boarding school in New Jersey, then Yale University, and the University of Virginia Law School (all this in the 50s and 60s, when gentlemanliness was often the flip side of misogyny and racism). He is a conservative, an intellectual, and a great writer and thinker, with a long track record of rulings critical of governmental overreach, judicial and otherwise. “Law is a craft and profession that in many ways transcends philosophy,” he once said. And he has spoken eloquently about how integrity, courage, and devotion to truth and principle are the foundations of the law.

All of these character traits were embodied in Judge Wilkinson’s ruling last week reaffirming that the Trump administration had to take a more active approach in seeking the release of Abrego Garcia from prison in El Salvador. In the ruling, he marched through the legal technicalities of the Supreme Court’s earlier directions, the meaning of the word “facilitate,” and what it all obligated the Trump Administration to do.

And then, the order became as much a prayer for a return of norms as it was a rebuke of the Administration’s inaction around Abrego Garcia’s case. That prayer was full of grace and was inspiring too, but it missed kayfabe. Judge Wilkinson fell back on a hope that the norms of our profession might somehow magically reappear and that we would go back to something like normal.

It started with this: “The basic differences between the branches mandate a serious effort at mutual respect.” No. I want to live in a world of mutual respect as much as Judge Wilkinson does. But there is no mandate for it, and our constitutional history is filled with moments when that respect was nowhere to be found. And kayfabe ensures that the Trump Administration will not find its way willingly to mutual respect.

Then, Judge Wilkinson comes face-to-face with the reality of our constitutional moment and the implications of kayfabe:

Now the branches come too close to grinding irrevocably against one another in a conflict that promises to diminish both. This is a losing proposition all around. The Judiciary will lose much from the constant intimations of its illegitimacy, to which by dent of custom and detachment we can only sparingly reply. The Executive will lose much from a public perception of its lawlessness and all of its attendant contagions. The Executive may succeed for a time in weakening the courts, but over time history will script the tragic gap between what was and all that might have been, and law in time will sign its epitaph.

Yes, Judge Wilkinson. You’re absolutely right. It’s sad. I, too, wish it weren’t so.

And then, the Judge’s final mournful plea –

It is, as we have noted, all too possible to see in this case an incipient crisis, but it may present an opportunity as well. We yet cling to the hope that it is not naïve to believe our good brethren in the Executive Branch perceive the rule of law as vital to the American ethos. This case presents their unique chance to vindicate that value and to summon the best that is within us while there is still time.

Kayfabe tells me that Judge Wilkinson is wrong; that the case presents not so much the chance for President Trump to summon something that is simply not part of his nature, but rather the chance to show something more valuable and enduring: that the Judiciary indeed is a coequal branch of government and that our system of checks and balances and separation of powers can work even with a president committed to grabbing every bit of power he can for himself.

We’re heading towards our legal Wrestlemania, let’s call it SCOTUSslam. I think we’re going to get there sooner than we think. It may ruin the justices summer vacation plans. But I remain hopeful. This weekend’s pre-dawn Supreme Court 7-2 decision to stop the deportations to Venezuela under the Alien Enemies Act, its use of clear, unapologetic, and unwavering language, and it’s seven-member majority I take as good signs. The Court did not parse the words “facilitate” and “effectuate” this weekend, as it did just 11 days ago in its initial decision not to vacate Judge Paula Xinis’ injunction. It did not wait for Monday morning after Holy Week had passed. There was an urgency to the decision. “The Government is directed not to remove any member of the putative class of detainees from the United States until further order of this court.” Now that’s better. Smack!

SCOTUSslam is coming. I’m praying and hoping for a good smackdown. It may not be gentile. It may be uncouth, lacking manners, decorum, and refinement. But it is exactly what we need right now.