SCOTUS and the Federal Courts
This is a copy and paste of Dahlia and Mark’s excellent critique of what is happening at SCOTUS and the Federal Court System under Justice Chief Justice John Roberts’ tutelage, McConnell loading the courts with patronage, and Trump’s whatever. I have seen some condemn the verbiage of Senator Schumer calling out Justices Kavanaugh and Gorsuch as threatening and yet at the same time ignoring the courts’ partisan behavior which will have an impact for years to come. The very same people will be decrying the court’s political decisions going forward.
No doubt, McConnell led Republicans are packing the courts with partisans who are more interested in politics rather than administering the law while Chief Justice John Roberts looks the other way. McConnell has been talking with older federal judges in an effort to get them to retire so they can be replaced with Republicans this year and before the election. This is a pretty good read by Dahlia and an eye-opener.
“Nowhere is the problem of asymmetrical rhetorical warfare more apparent than in the federal judiciary. For the past several years, federal judges, notably those appointed by Donald J. Trump, have felt unmoored from any standard judicial conventions of circumspection and restraint, penning screeds about the evils of “big government.” and rants against Planned Parenthood. Most of the judicial branch, though, has declined to engage in this kind of rhetoric. There are norms, after all, and conventions, standards, and protocols. There seems to also be an agreement the rightwing-judges demonstrate deeply felt passion when they delve into such issues, while everyone else just demonstrates “bias” if they decide to weigh in. So when Justice Clarence Thomas just last year used a dissent to attack the integrity of a sitting federal judge in the census case, it was mere clever wordsmithing. But when Justice Sonia Sotomayor suggests, as she did recently, that the right-wing of the high court seems to be privileging the Trump administration’s emergency petitions, she is labeled—by the president himself—unfit to judge. It’s such a long-standing trick, and it’s so well supported by the right-wing outrage machine, that it’s easy to believe that critiques of fellow judges by conservative judges are legitimate, while such critiques from liberal judges are an affront to the legitimacy of the entire federal judiciary.”
In case you are wondering what decisions have been made in the SCOTUS by the cabal of 5, I am going to let Senator Sheldon Whitehouse (RI) enumerate them for you.
Back to Dahlia Lithwick:
“This dynamic is why it’s so astonishing to see progressive judges really go for broke in criticizing conservative bias in the judiciary, as U.S. District Court Judge Lynn Adelman does in criticizing the five conservative justices on the Roberts Supreme Court in an upcoming Harvard Law & Policy review article.* The article begins, brutally:
By now, it is a truism that Chief Justice John Roberts’ statement to the Senate Judiciary Committee that a Supreme Court justice’s role is the passive one of a neutral baseball “umpire who [merely] calls the balls and strikes” was a masterpiece of disingenuousness. Roberts’ misleading testimony inevitably comes to mind when one considers the course of decision-making by the Court over which he presides. This is so because the Roberts Court has been anything but passive. Rather, the Court’s hard right majority is actively participating in undermining American democracy. Indeed, the Roberts Court has contributed to insuring that the political system in the United States pays little attention to ordinary Americans and responds only to the wishes of a relatively small number of powerful corporations and individuals.
Adelman, who sits in the Eastern District of Wisconsin, goes on to methodically chronicle that which is hardly news to anyone who has observed the rightward turn of the Supreme Court. His article brings into clear relief the court’s systemic attack on voting rights for minority and other marginalized communities, by way of striking down a key section of the Voting Rights Act, as well as repeated blessing of voter suppression and decisions not to adjudicate political gerrymandering. He notes that the court privileges the wealthy and corporate interests at the expense of the public. He lays out in detail the rise of the right-wing legal movement, starting with the infamous 1971 Lewis Powell memo that served as a right-wing call to arms and tracing its progress through the current well-funded effort to reverse the New Deal in the courts. The article ultimately portrays the slow movement of the Supreme Court to the right—and then the far right—through a long line of cases that reversed the Warren court’s protections for minority groups and poor and working-class Americans. It shows how the court has undermined unions and boosted corporate interests. The court, he notes, has greatly contributed to income inequality, health care inequality, and the hollowing out of the American middle class.
Adelman ends with this caution:
We are thus in a new and arguably dangerous phase in American history. Democracy is inherently fragile, and it is even more so when government eschews policies that benefit all classes of Americans. We desperately need public officials who will work to revitalize our democratic republic. Unfortunately, the right-wing Justices on the Roberts Court are not among them.
Color commentary aside, none of these facts is a matter of dispute. Indeed, most of the article is the descriptive stuff of triumphalist Federalist Society touchdown dances at national conferences. Sen. Sheldon Whitehouse, among others, has been chronicling this shift for years now. So the only material question is who gets to say it. Is it somehow over the ethical line when a progressive judge puts these observations into writing?
Five years ago, we’d have said yes, it goes too far. Under any set of ordinary circumstances, it is always better for life-tenured jurists to stay in their lane, avoid partisan political criticism, and work to preserve the vitally important norms of judicial independence and nonpartisan, oracular judicial temperament. But there remains the question—possibly the abiding question of our time—about whether only one side can remain beholden to norms when the other has eviscerated them.
Evisceration is not an exaggeration. Judge James Ho, a Trump appointee to the 5th U.S. Circuit Court of Appeals, has assumed the role of robed Fox News commentator. He judges who uphold their right to do so. He claims that we can stop mass shootings by shielding police from lawsuits when they accidentally murder innocent people. He intentionally misgenders transgender litigants—as does his colleague, Kyle Duncan, a fellow Trump appointee. Another judge on the 5th Circuit, Edith Brown Clement (a George W. Bush appointee), penned a partisan attack on her colleagues. And, under the influence of Trump’s judges, the 5th Circuit as a whole has begun defying Supreme Court precedent in a series of blatantly political decisions.
A startling number of Trump judges appear to believe that, like Ho, their job is mainly to own the libs in print. Neomi Rao, a Trump judge on the U.S. Court of Appeals for the District of Columbia Circuit, has created a cottage industry out of writing preposterous Trump-friendly polemics. On the same morning that South Texas College of Law Houston professor Josh Blackman expressed his outrage at Adelman’s article, Rao issued yet another dissent that would protect Trump, this time by denying the House of Representatives access to the unredacted Mueller report. Rao’s position is so extreme that Thomas Griffith, a conservative George W. Bush appointee, penned a separate concurrence just to shred it. It is impossible to ignore the fact that Rao keeps running interference for the Trump administration, making arguments that are promptly shunned. And it is difficult to avoid the conclusion that her lengthy, contorted dissents begin with the proposition that Trump must triumph and work backward from there.
At what point do judges on the left push back? Judge Carlton Reeves of Mississippi, a Barack Obama appointee, attempted to do so in a 2019 speech, though he primarily focused on Trump’s “assault on our judiciary.” Waiting around for the chief justice to wade in, on the occasions he opts to wade in, has proven almost fruitless for sitting judges who feel increasingly like sitting targets. No sitting judges have dared to question whether it’s appropriate for, say, Clarence Thomas to accuse a lower court judge of being a conspiracy theorist and a partisan hack. None have publicly asked why the Supreme Court’s conservatives keep misreading a 1925 law in order to shut down class-action lawsuits to the great benefit of big corporations. Lawyers on the left are supposed to accept that conservative judges call balls and strikes no matter what, while liberal judges engage in activism if they try to protect minorities, women, and the poor. Note also that Reeves did not make his argument in a judicial opinion; he did so in a speech. Adelman did so in a law review article. These are not binding legal judgments, and have no force of law, unlike the opinions of some of Trump’s chosen gladiators. These are extrajudicial writings, no different from those offered up almost yearly by Judge Richard Posner, who opined in books, speeches, op-eds, Slate articles, and elsewhere.
Adelman’s critique of the court’s conservative wing is not particularly seemly or polite. But it was not all that polite when the Supreme Court accurately noted that the Virginia judiciary endorsed “the doctrine of White Supremacy” in upholding interracial marriage bans. It was not especially polite when the 9th U.S. Circuit Court of Appeals found that Arizona legislators suppressed minority votes out of racism. It was not all that polite when Justice Anthony Kennedy wrote that Colorado voters discriminated against gay people out of sheer animus. It is in the finest tradition of the judicial branch to sacrifice decorum and politeness to calls for actual justice, especially when the rights of minorities, women, the poor, and the disenfranchised have been hollowed out by monied interests and the political branches that answer to them. In that sense, the real tragedy here is that progressive judges will be pilloried for saying out loud what conservative judges have secretly, and not so secretly, crowed about themselves for decades.”
“A Federal Judge Condemned the “Roberts Court’s Assault on Democracy. It’s About Time,” Slate, Dahlia Lithwick and Mark Joseph Stern, March 10, 2020
Remember when the berniebros criticized Clinton for attempted bribery when she claimed we could not allow trump to appoint federal judges?
I do.
I had many a fight with sanders fanatics(as different from Sanders backers) throughout the 2016 campaign. One was in here.
Michael
May 7, 2016 7:57 pm
Ms 57,
I enjoy reading your posts, almost all of which I agree with (ever notice how you like people that agree with you?) However, at this point you (and others with this idea) are contributing to the possibility of Donald Trump being President.
Time to grow up. Sanders has lost. Let’s figure out the best way to go (Yes, the lesser evil). Sanders and his fans can move this debate to the left if they work inside the party. Outside the party, or by attacking the nominee is a recipe for disaster.
I do not like HRC one bit. Never have. Doesn’t matter. to rail against her is to help the GOP. At this stage to attack her is to work towards the deaths of tens of thousands Americans a year (mostly all poor). To attack her is to work towards tens of thousands of Americans facing financial ruin because they got sick.
I won’t bother with all of the other things that Trump would do to this country that would put you into a state of depression.
Time to grow up. Sanders lost. If he had been a Democrat his whole life everything might have been different. But let’s take that mistake and support the team (no matter how you feel about the winner).
The only way to change this country is by working with, and influencing, the Dem party and its platform.
Attacking Clinton at this point is the act of a stupid, selfish two year old. You have to stop. And you have to have everyone else you know to stop.
We can move left, but if Clinton loses we will not move left in my lifetime (or taking the 57 into account) your lifetime.
You can’t get out the vote is you continue the thoughts you expounded in this post.
We really cannot afford another two Scalias.”
http://angrybearblog.com/2016/05/bernie-sanders-was-right.html#comments
Referring to the current GOP as ‘conservative’ is a mistake. They are not conservatives. It’s only a name. They are right-wing Bolsheviks, bent on power and very little else. Note how the usual tea party rhetoric disappeared when a Republican took power. Note how the right wing is all for stimulus when it threatens one of their own. Note how McConnell will gum up the works indefinitely until he can stack the deck in favor of his tribe. Note the endless inconsistencies in thinking. It’s a combination of utter immorality on the part of leadership and utter intellectual vacancy by the rank and file.
I don’t know what to think. This country isn’t what I think it should be now. Ah, well. We survived the red scare and all the red baiting of the 1950s. We will survive this. What will be fun to watch is the fireworks when the Democrats, who are not stupid and see what works and what doesn’t, start breaking it off in Republicans. It will happen, and it will be to the ongoing detriment of the country. But, the worm turns and the evil the GOP has unleashed will revisit them. They will not be in power forever.
If I may add to run’s post with this opening statement by Senator Whitehouse of the Gorsuch hearing.
Daniel:
It is there. I just added it to the post.
Willie,
The 50’s were different. The right was far from power. Now, they have reset the theater to favor all angles of viewing to their direction.
We survived the red scare because they were of the minority and the New Deal with 4 FDR elections had shown the way. We don’t have the security the ideals of the New Deal put in place via policy and thus social structure.
Unfortunately, it also set the right off on a 5 decade quest to undo and assure no redo of the era of the New Deal. They have gotten lucky with circumstances of hardship that they were able to leverage into rhetoric of the nature that you can’t trust government, it is your enemy, to get rich cut taxes, kill government regulation and stop killing the unborn rolled up into super patriotism via fear mongering.
As the operators of the Democratic Party saw the Republican’s winning they decided that was the way to win. They stopped doing democracy and started doing winning. It’s kind of the political version of follow the market. You know, you hit upon the pet rock, then your competitors copy you. May work for making money but it’s a failure for society, democracy and humanity.
Nothing personally, but calling that ‘white supremacy ‘ is in the eye of the beholder ‘. Their version of ‘whiteness’ is a con and always has been. It is Zionism and nothing more. As many a white supremacist has found out, reject their zionism, they have you and everything you represent.
Unilateral disarmament is inappropriate in this political struggle. The Federalist Society program to “pack” the courts with the assistance of Senator McConnell and his majority unfettered from the constraints of the filibuster has been wildly successful with the suppression of Obama’s nominee and resulting Federalist majority the most conspicuous victory. Calling out Chief Justice Roberts for his participation may delay, but will not deter the complete radicalization of the Court for decades to come.
Faced with such problems, FDR tried to pack the court by increasing its numbers and his available nominations. The Senate refused to approve but that Court recognized the threat that another effort might succeed and changed the direction of its holding to allow the New Deal programs to succeed.
Should the Democrats regain the presidency and the Senate majority, they should not hesitate to threaten packing and actually accomplishing it. The utter politicization of the Court is beyond dispute and it should be treated for what it is. Perhaps some day moderation and neutrality on the Court might be possible but that day is clearly not now.
As a Chicago alderman is reputed to have said, “Politics ain’t beanbag!”
JackD:
I was hoping you would stop by and comment. The Democrats are not as bold as a McConnell. The man is despicable and I am sure there is something on him which can be exposed. Why should anyone play fair with him? Per throwing their support to Amy who is running against him may push him out of office. He needs to leave in any manner in which we can force him out.