By Jessie Seigel / Washington, D.C.
The right-wing takeover of the judiciary is as much a part of the Republicans’ fascist putsch-in-progress as are Donald Trump’s Jan. 6, 2021 attempted overthrow of the 2020 election and the conspiracies between the Trumpers in Congress and the former President’s Administration, which are coming to light more and more daily.
The latest chapter in the judiciary’s role is last week’s leaked Supreme Court draft opinion regarding Roe v. Wade, which would eliminate a woman’s constitutional right to an abortion.
Though the opinion, if and when it becomes final, will have a devastating effect on the day-to-day lives of women, its damage to our country will be far greater than that. And it appears that at least five of the court’s six ultra-conservative justices have already signed on.
In holding that Roe v. Wade “must be overruled,” Justice Samuel Alito emphasized that the Constitution contains no explicit or implicit right to abortion. Though he conceded that the Fourteenth Amendment “has been held to guarantee” some rights not mentioned in the Constitution, Alito maintained that any such right must be “deeply rooted in this Nation’s history and tradition.”
This claim that rights not specifically named in the Constitution must be rooted in “history and tradition” is plainly the opening salvo for a judicial attack on any and all such rights. That includes rights such as gay marriage, interracial marriage, the elimination of legal segregation—and that is only the start of a list. Who knows how far this reactionary court might go in abrogating the rights of American citizens?
Alito pretended to reason his way to overruling the 50 years of established law Roe v. Wade represents. But he revealed his true contempt for precedent and the rule of law in a speech he gave to the extreme right-wing Federalist Society in 2015.
There, Alito said of stare decisis, the legal phrase denoting precedent: “It is a Latin phrase. It means to leave things decided when it suits our purposes.” He went on to say, “it’s not difficult for a judge to make the stare decisis inquiry come out however the judge wants it to come out.”
According to Senator Sheldon Whitehouse’s 2019 book, Captured: The Corporate Infiltration of American Democracy, Chief Justice Roberts is equally cynical. Whitehouse wrote that Roberts “went even further than Alito, announcing that he evaluates precedent in light of whether his bloc of justices objects to it.”
These are not the philosophies of legal scholars. These are the approaches of political hacks.
Also revealing of the court’s dishonesty is Roberts directing the Marshal of the Supreme Court to launch an investigation into who leaked Alito’s draft opinion. It is not even clear that such a leak breaks any laws, so bringing the Marshal into it may be an abuse of power.
In any case, Roberts’ sole concern is the “betrayal of the confidences of the Court.” In a May 3 statement, he indignantly decried the leak as a “singular and egregious breach of … trust that is an affront to the Court.”
But where was Chief Justice Roberts’ indignation or action when Justice Clarence Thomas failed to recuse himself in cases involving the Jan. 6, 2021, coup attempt—despite Thomas’ wife’s involvement and personal interest in the outcome? Indeed, where was Roberts’ concern for the court’s propriety and appearance of impartiality when, as reported by Think Progress as far back as 2011, Thomas and Alito attended arch-conservative fundraisers organized by billionaire GOP donor Charles Koch to coordinate political strategy? Roberts’ concern even for the Court’s appearance of integrity was nowhere to be found.
It is apparent that Roberts’ concern is maintaining the Court’s veneer of legitimacy while hiding the Court’s real workings from the public. But it’s too late for that. For some time now, the Supreme Court justices aligned with the Republicans have barely bothered to give even the appearance of impartiality. The Court’s trappings of respect or legitimacy are now as thin and transparent as cellophane.
The Judiciary’s Threat to Democracy
How did the courts become a vanguard for anti-democratic forces? Through corrupt manipulations by Republican leaders, especially Kentucky Senator Mitch McConnell, known for twisting the Senate’s rules in unconventional ways to get what he wants--especially as it relates to judges.
In 2016, as Majority Leader, McConnell famously refused to even hold a hearing on President Obama’s Supreme Court nominee, Merrick Garland, on the specious claim that it was not appropriate to approve a Supreme Court nominee in a presidential election year. This made way for Trump—when he became president—to appoint ultra-conservative Appeals Court Judge Neil Gorsuch to the Supreme Court. In one of Gorsuch’s sallies against democracy in 2018, he joined in a concurring opinion by Justice Thomas arguing that Section 2 of the Voting Rights Act, which prohibits discriminatory voting actions by government, should not apply at all to redistricting decisions.
Despite McConnell’s rationale for blocking Merrick Garland’s appointment, McConnell made sure to rush through confirmation to the Supreme Court of regressive Federal Appeals Court Judge Amy Coney Barrett a mere eight days before the 2020 presidential election—thus depriving Joe Biden of the chance to fill Ruth Bader Ginsburg’s seat when he won that election and became president.
According to People for the American Way, among Justice Barrett’s abhorrent positions on the appellate court were her vote to allow businesses to racially segregate workplaces, her vote to reject an immigrant torture claim without considering the merits, and her issuance of a dissent that would have denied a criminal defendant his right to counsel.
This corruption of our democracy extends from top to bottom of the judiciary. Appointments to the lower courts, similarly shepherded by McConnell, will likely have just as adverse an effect on the country as the current Supreme Court majority.
The Alliance for Justice Action Campaign has reported that each year, about 50,000 cases are filed in federal courts of appeals and over 390,000 in district courts. Since the Supreme Court addresses fewer than 100 such cases each year, this means that lower federal court decisions are final in most cases.
As addressed in detail by the People for the American Way, Trump’s appellate court judges have been responsible for decisions biased in favor of corporations, supportive of discrimination, and damaging to workers’ rights, immigration, consumers rights, reproductive rights, and other constitutional issues like money in politics, and abuse of government authority.
234 of these judges—a third of the Supreme Court and almost a third of active appeals court judges—were appointed by Trump during his four years in office.
Most of Trump’s judicial appointees were chosen for their willingness to dismantle the American judicial system and democracy itself in pursuit of reactionary goals. Judicial qualifications, precedent, and legal reasoning—let alone our health and welfare—be damned.
According to the Washington Post, out of a total of 22 court nominees rated “Not Qualified” by the American Bar Association (ABA) since 1989, 10 were nominated by Trump. Of those, two withdrew their nominations and eight were confirmed by the Republican-controlled Senate.
A Sampling of Trump’s Lower Court Judges
Kathryn Kimball Mizelle, the federal district court judge in Florida who recently issued a nationwide injunction striking down the federal mask mandate for public transportation, had only been practicing law for eight years when confirmed for her lifetime position and had only ever participated in two trials before her appointment—both while she was in law school. In 2020, the American Bar Association (ABA) rated her “Not Qualified,” for the district court judgeship, based on her lack of experience.
But none of those disqualifications mattered. According to Vanity Fair on April 19, Jones Day, the firm Mizelle worked for before her lifetime appointment, was the biggest firm representing Trump in his efforts to undermine the results of the 2020 presidential election. Her spouse, Chad Mizelle, was the former general counsel to Trump’s Homeland Security Department. Not to mention the fact that Mizelle clerked for Clarence Thomas—from whom she probably learned her fanciful legal approach. Needless to say, the lame-duck Republican Senate rushed through Mizelle’s confirmation between Trump’s loss of the 2020 election and Biden’s inauguration.
In striking down the mask mandate, and endangering the nation’s health, Mizelle applied a preposterously narrow interpretation to justify her ruling. Among other things, focusing on “sanitation”--only one term in the statute authorizing the CDC’s protection of public health-- she wrote, “Wearing a mask cleans nothing. At most it traps virus droplets. But it neither ‘sanitizes’ the person wearing the mask nor sanitizes’ the conveyance.” The Washington Post characterized this as Mizelle “imposing her policy preference on the whole country, conjuring up whatever legal justification she could pull out of the air to make it happen.” I strongly agree.
And at a time when variants are again on the rise, allowing people to crowd into a confined space for hours, breathing the same air, is asking for more spread of the disease as well as the emergence of further variants—which makes Mizelle’s policy preference deadly.
(I must admit I take her decision quite personally. Mizelle is trying to kill me. True–her injunction affects everybody who travels by air, train, and other forms of public transport, not just me. But as Catch 22’s World War II hero Yossarian said when told the enemy was shooting at everybody, not just him: “What difference does that make?")
D.C. Circuit Court Judge Neomi Rao, a Trump loyalist, was appointed in 2019, to take the seat previously held by now-Justice Brett Kavanaugh. In her pre-judicial years, she had written op-eds expressing her hostility to LGBTQ advocacy, insulting African-American scholars, and blaming survivors of sexual assault for being attacked. But as nasty as those biases are, even worse was Rao’s willingness to undermine democracy by maintaining in a dissent in October 2019 that presidential power has no limits, and that Congress could not use subpoenas to investigate Trump’s impeachable offenses. If presidential power has no limit, then we may as well throw out the Constitution and the Bill of Rights. No one who takes that position has any place on the bench.
Mathew Kacsmaryk, a Trump appointee to the U. S. District Court for the Northern District of Texas who was confirmed in 2019, ordered President Joe Biden’s administration to reinstate Trump’s “Remain in Mexico” policy, requiring asylum seekers at the U.S.-Mexico border to stay in Mexico while awaiting a hearing. The Supreme Court backed Kacsmaryk, effectively requiring the Biden Administration to comply with the order, even while its appeal is pending.
Because the reinstatement would require cooperation of the Mexican government, Kacsmaryk’s order trampled decades of Supreme Court opinions that warned against the danger of judicial interference in the conduct of foreign policy. For stability of foreign relations, other nations need to know that when they negotiate with the United States, an agreement won’t suddenly be upended by some individual federal judge who happens to disagree with it.
Next on the judicial chopping block may be the longstanding Congressional authority to delegate power to agencies. If that is negated, federal courts could essentially gut agencies’ ability to implement Congress’s laws, thus hamstringing the capacity of the legislative branch of government to function. According to VOX, some lower court judges are already jumping the gun, referencing lack of delegation authority as one of their reasons for tossing out agency regulations.
The Washington Post wrote in April 2022 that, for Trump’s judges, “There are no principles worth adhering to, no systems that should command respect, and no rules worth obeying if you don’t like the outcome those rules produce.” In other words, these are judges who do not believe in law.
It is clear that the Department of Justice simply must be more proactive in challenging the many reactionary decisions by these various Trump judges. Admittedly, however, such challenges will come to nothing if the right-wing majority on the Supreme Court is of a mind to dismantle the democratic process, as well as encouraging and upholding such incursions by lower courts.
So, the only real route to stopping this third leg of the coming fascism is the ballot box this November. President Biden and the Democrats need to stop bemoaning their inability to overcome Republican obstruction. Instead, they need, Harry Truman-style, to shout at the top of their lungs: “You want our promises fulfilled? Help us overcome the filibuster. Throw the blaggards out. GIVE US MORE DEMOCRATS IN THE SENATE AND THE HOUSE!”
Political columnist Jessie Seigel had a long career as a government attorney in which she honed her analytic skills. She has also twice received an Artist’s Fellowship from the Washington, D.C. Commission on the Arts and Humanities for her fiction, and has been a finalist for a number of literary awards. In addition, Seigel is an associate editor at the Potomac Review, a reviewer for The Washington Independent Review of Books, and a dabbler in political cartoons at Daily Kos. Of this balance in her work between the analytic and the imaginative, Seigel jokes, “I guess my right and left brains are well-balanced.” More on and from Seigel can be found at The Adventurous Writer, https://www.jessieseigel.com.