The Judicial Institution Has Rotted
The lawless application of the law, brought to you by hyper-partisanship
Not to fixate on the court system, but its role in upholding the rule of law and its importance in keeping American government and society grounded in reality have been struck several severe blows.
This installment argues that these blows have devastated the judicial system, possibly the only place where the Right Wing Alternative Reality should go to die, and argues that it is only a taste of what happens when institutions actually fall completely.
The Courts Should Be Insulated from Alternative Realities
When Trump lost the 2020 election, he sued over it. The final tally was over 60 lawsuits trying to overturn the election (but only in the states that he lost). Trump lost all but one of them (and the win was a very small one) because every judge hearing the case, including those appointed by Trump himself, did their job: They demanded that he prove his case. He and his crack legal team failed to do so because there was no evidence to support their claims.
That’s what is so wonderful about the court system. You make your claim, and then you have to present evidence to prove it. The judge issues rulings and final decisions that are publicly available for all to see and scrutinize. Partisan hackery still exists, but it is contained at least to an extent by the confines of the law and the negative publicity that the most obviously partisan decisions will receive.
At least, partisan hackery used to be contained by the law and accountability.
How the Right Wing Packed the United States Court System
Federal judges are appointed by the President of the United States and confirmed by the U.S. Senate, so things have always been political to an extent. To complicate matters, there has been the longstanding, if unspoken, rule of Senatorial Courtesy for District Court judges, where the Senators from a state can influence or even block the appointment of a judge to their state’s District Court(s). Under Senatorial Courtesy, Senators of the same party as the President basically recommend judges for the President to nominate to their state’s District Court(s), and Senators of the opposite party from the President have at least a consultant’s role in the process.
The upshot of all of this is that federal judges have historically reflected the policies of the President, but that District Court judges appointed by Republican Presidents to blue states, and by Democrat Presidents to red states, have tended to be more moderate.
That all went out the window, starting in 2008, but particularly from 2015 through 2016.
See, the President nominates federal judges, but the Senate has to confirm them. Republican Party leader Mitch McConnell (R-Blank Stare) did what he could to slow down the judicial confirmation process for Obama’s first term, when Democrats controlled the Senate (the 111th through 113th Congress). But then when Republicans gained control of the Senate in 2015 in the 114th Congress, he turned the spigot almost completely off:
It wasn’t just the Merrick Garland scandal in 2016, which was when right wing Supreme Court Justice Scalia passed away, Obama nominated the center-left Garland to replace him, and McConnell blew a raspberry (later claiming that it was one of his proudest moments).
It was all judicial nominations.
On the day that Trump took office in January, 2017, there were 105 vacancies in the federal judiciary for Trump to fill, including the seat on the Supreme Court. McConnell’s antics paid off.
Even though Trump was the first single-term President since George Bush I 30 years prior, he appointed 265 judges to the federal system, including 54 to the Circuit Courts of Appeal (Obama only had 55 Circuit Court judges confirmed in his 8 years). The result is the current makeup of the federal judiciary:
A Rightward Tilt Beyond Facts and Reason
Those judges were chosen specifically because they would push right wing policies. It’s no secret that the Federalist Society, a very right-wing legal organization, played a central role in selecting the judges that Trump nominated and the Republican-controlled Senate confirmed. It’s also no secret that the appointees were chosen for their right-wing politics, first, and for their qualifications, second.
The result has been predictable, entirely the point, and much more dangerous than many people outside of the legal profession appreciate.
It is a longstanding rule that courts should only overturn prior cases, or precedent, if there is an extremely good reason to do so. Those prior cases are the law, people follow the law, and so keeping the law the same is extremely important. Overturning prior cases is also an admission that the Court got it wrong, which undermines its credibility, and also an admission that the Court is trying to change the law, which makes it seem partisan. One legal scholar found that, from 1789 to 2020, there were 25,544 Supreme Court decisions, and only 145 of them overruled precedent. Former Chief Justice William Rehnquist thought that the Miranda decision (the one that makes cops on TV chant “you have the right to remain silent…” etc. during arrests) was wrongly decided, but refused to overturn it in 2000 when he had the chance because Miranda warnings have “become embedded in routine police practice to the point where the warnings have become part of our national culture.” For Christ’s sake, it took the Supreme Court 74 years to overrule Korematsu v. United States, the case that said it was fine and dandy to throw Japanese people into internment camps during World War II.
That rule against overturning precedent is dead. In just the last few years we’ve seen the right wing appointees in the Supreme Court overturn:
Roe v. Wade and Planned Parenthood v. Casey, which had recognized abortion rights in the U.S. Constitution
Chevron v. NRDC, which had required judges to defer to the interpretations of laws or statutes by the government agency enforcing them, as those interpretations would have been made by experts in their field of practice
Lemon v. Kurtzman, which had established the test for when government actions violated the Establishment Clause and unfairly supported a religion
Nevada v. Hall, which concerned states’ sovereign immunity from lawsuits
Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, which had required private property owners to go through state court over eminent domain issues
Davis v. Bandemer, which had ruled that courts could handle cases of political gerrymandering
All of those cases are dead now, and have been replaced with far more conservative rules.
It is also procedure for appeals courts to let trial courts do the fact-gathering and then use the trial court’s factual findings. But we have seen the Supreme Court, the highest of appeals courts, ignore those findings when changing the facts of the case would produce a more right-wing result:
Finally, this right-wing judge packing has led to little pipelines in the judiciary becoming dominated by Republican appointees, like certain District Courts in Texas that have only one Trump appointee, which are then overseen by appellate courts (the Fifth Circuit) that have a Republican supermajority on the bench. Foreseeably, this pipeline in Texas has produced some rulings that would be real head-scratchers if you didn’t just chalk it up to partisan politics, like:
Forcing the Navy to deploy service members who defied an order to get vaccinated for COVID (effectively putting the judiciary in charge of the Navy)
Putting the state of Texas in charge of content moderation for social media sites
Ruling that the Consumer Financial Protection Bureau (CFPB) is unconstitutional under the Appropriations Clause (the Supreme Court had ruled nearly a century ago that this is not how the Appropriations Clause works)
Limiting access to the abortion pill mifepristone by rescinding the FDA’s 20-year-old approval of the drug (something that courts never seem to have done before, ever)
The partisanship of the judicial system and the Supreme Court is so abnormal and so unprecedented that law professors are struggling to teach. When judges ignore legal doctrine to advance right-wing policies, how do you teach those legal doctrines? Or, better yet, why?
One law professor told Slate Magazine that recent right-wing decisions “have unsettled the foundational premises of our professional lives.”
The result: Approval of the Supreme Court has dropped from 58 percent in 2020 to 40 percent in 2023 (though 62 percent of Republicans approve of it now, compared to 17 percent of Democrats), and 70 percent of Americans, including 73 percent of independent voters, think that Supreme Court justices shape the law to fit their own ideologies, rather than being fair and impartial.
It’s gotten so bad that the justices have had to insist that the Court’s role is legitimate.
Judge Cannon’s High-Profile Decision is the Point of No Return
Into this atmosphere came last week’s decision by Florida District Court judge Aileen Cannon, who was appointed by Trump, to dismiss the classified documents case against Trump because the special counsel was not correctly appointed.
The 93-page explanation for the dismissal on this rationale is exceptionally bold for how bewilderingly stupid it is. It also proves just how valuable these public opinions are: Because judge Cannon had to explain why she was dismissing the case, we can all see that this was pure partisanship.
If you want a 17-minute walk through, you could do worse than this one, which explains why “based on current law, this decision is… nuts.”
If you don’t have 17 minutes, though, judge Cannon literally “fake news”-ed the binding Supreme Court case penned by 8 Supreme Court justices under which Special Counsel Jack Smith’s appointment was constitutional (pages 55-67) by claiming that the passage from that case was non-binding “dicta,” and instead followed the reasoning of justice Thomas’ concurrence in the recent Trump immunity case, which was joined by no other justice on the Court and therefore is not the law, and which itself is non-binding dicta, given that Smith’s appointment was a non-issue in the immunity case. Oh, and for good measure, judge Cannon also draws a distinction between special counsels that have been “appointed” and those that have been “retained” – a distinction that would curiously end Jack Smith’s role in investigating Trump while also protecting David Weiss, the Special Counsel investigating Hunter Biden for I don’t even know what, anymore. It’s a distinction that has never been made, before, and would also have invalidated numerous prior Special Counsels whose constitutionality was never questioned.
It’s simple: This was a nakedly partisan decision, and judge Cannon was too inept to put any clothes on it or, worse, just couldn’t be bothered or didn’t think it was necessary to dress it up in legitimacy.
There should be a zero chance of judge Cannon’s decision standing on appeal. Benchslap enthusiasts should be salivating at what is to come.
But Florida’s appellate court is the Eleventh Circuit Court of Appeals, which has 12 judges, 6 of whom were appointed by Trump, and then there’s the Supreme Court, on which 6 of the 9 justices have given Trump sweeping, controversial victory after sweeping, controversial victory.
The Death of Institutions
Remember when Trump lost the 2020 election and was filing lawsuits left and right to get the results overturned, but nothing gained traction because “key institutional roles in formalizing the outcome… [upheld] the rule of law and abide[d] by the norms of the country’s electoral system”?
These institutionalists may have been preemptive.
The steep rightward shift in the federal judiciary thanks to the overtly-political judicial appointments of Trump, McConnell, and the Federalist Society shows just what happens when institutions rot. In this case, the institution is the federal judiciary. The facts don’t matter anymore. When judges want different facts, they make them up. When the law is inconvenient, they change it. When they can do neither, they just do it anyway.
This is happening with only about one-third of the federal judges being appointed by Trump, plus another quarter from earlier Republican presidents, not all of whom have fallen into the MAGA line.
These affronts to reason and to reality are just a taste of what would happen if Trump were re-elected, reinstated his executive order that reclassified virtually every federal employee as Schedule F, fired tens of thousands of executive branch workers based on the right wing’s ongoing investigations into their political leanings, and then replaced them with Trump loyalists.
It wouldn’t just be court opinions imposing nonsensical right-wing policies, and there wouldn’t be any pushback from non-acolytes because there wouldn’t be any of them, anymore.
The Environmental Protection Agency (EPA) could become pro-oil.
The Department of Education could push for charter schools (if it didn’t get eliminated).
The Internal Revenue Service (IRS) would spend its money going after welfare recipients over pennies rather than billionaires over millions.
This lawlessness of the court system is the result of a rotten institution.
The lawlessness of the entire executive branch once it has been taken over by the right wing would be astronomically worse.
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