I had the chance to be a lawyer. My father’s lawyer promised me, then a college sophomore, a partnership track in his niche firm as soon as I passed the state bar. I also had the good sense not to take it. Still, I find myself fascinated by accounts of legal cases. I read Clarence Darrow’s Attorney for the Damned and Louis Nizer’s My Life in Court for pleasure in my college years. I diligently read the news about important legal cases. President Donald Trump and Attorney General Pam Bondi are keeping me busy keeping up with their legal escapades and court rulings on them. (Those interested in Trump-related cases might read Joyce Vance’s Civil Discourse, Marc Elias’s Democracy Docket, and Glenn Kirschner’s Justice Matters.)
Two things jump out at me. One, the lower the court in the federal system, the better the verdict. District courts have done well in most cases. Appellate courts have been a mixed bag; they have rejected some solid opinions like Judge Charles Breyer’s opinion in the California case of Trump’s use of national guard troops in Los Angeles. The Supreme Court has disgraced the very idea of justice, its decisions often dictated by the ends desired by its conservative members and rationalized by their spurious interpretations or inane spur-of-the-moment judicial doctrines.
Two, the judicial custom granting deference to the president is a pernicious one. Of course, he must be accorded some latitude because he must often determine policy or action based on a difficult judgment about what the law allows and circumstances require. The critical word is “judgment.” When considering the president’s policy or action, judges must consider not only the law and the circumstances, but also his judgment. In doing so, they must consider such factors as his character, his official purposes, and his political attitudes, beliefs, conduct, and motives. One assumption of the Constitution is that the officers of the government, including the president, act in good faith and in the national interest. Trump’s performance challenges that assumption. So judges must now consider his judgment before granting heretofore customary deference to the president, who remains, rhetorically and theoretically, an equal under the law.
Very simply, the courts at any level cannot do their job if they reflexively defer to a president who has stated that he will take retribution upon those who he believes opposed, are opposing, or will oppose him. Or if they defer to a president who has made the Department of Justice an implement of his personal or political retribution. Or if they defer to a president who is taking, expanding, and exercising his power over the government in defiance of the Constitution and in contempt of the courts themselves. If they do defer, they aid and abet the presidential abuse of power. It is no secret that President Trump and California Governor Gavin Newsom are at odds on many issues. So when Trump unilaterally and arbitrarily determines that he must federalize the California national guard without consulting with the governor, he must be suspected of acting, not to enforce the law or protect federal personnel or facilities, but to enhance his power and score political points. Unrestrained by law or the courts, Trump declared that he would target large cities because they were the bases of political support for Democrats. It is not an “official” function of the president, pace SCOTUS, to use government resources to target perceived personal enemies or political opponents, whether individuals or institutions.
I have suspected the political tendencies of the Supreme Court for years. Now, the present court, which includes six Catholic-born, conservative, Republican justices with anti-democratic biases, confirms my suspicions. Their religious background inclines them (but not all Catholics) to favor centralized authority. Their rulings have diminished the authority of Congress, which represents the people, relative to the authority of the Executive and Judicial Branches. Their deference to the president, whom they exempted from criminal prosecution for official conduct in office, and their many reversals of precedents, which include Roe v. Wade, Chevron, show a contempt for the law, settled or not, and for prior justices no less and probably better qualified because of their relative political impartiality. Reversing Roe v. Wade is the most damaging to individuals, and reversing Chevron is the most damaging to the country because it undermines the ability of agencies to make complex decisions based on technical expertise and puts those decisions in the hands of judges neither qualified to make them nor accountable for them. They interpret the text of the Constitution as if its words were inkblots on a Rorschach test.
I have never had any respect for the Chief Justice John Roberts. Ever since, in his Senate confirmation hearing, he offered up his view of the role of judges as just calling balls and strikes, I knew from the limitations of his metaphor that he was pretending to a judicial impartiality not his. Umpires can favor one team or pitcher over another. Roberts has never shown impartiality. Yet this privileged, sheltered elitist has the presumption to ask Americans to respect his court, which discards precedents with abandon and contains at least two justices—Clarence Thomas and Samuel Alito—corrupted by conflicts of interest. Courts, like fish, rot head first.
I do not know the history of the German courts before the advent of Adolf Hitler to the Chancellery, but I know that after it, the courts, whether already corrupt or soon corrupted, gave legal support to his regime. I know the history the America’s federal court system will narrate a similar history of legal subversion by Republican efforts to put judges corrupted by partisanship on the courts in the federal court system for the past four decades. The first notorious instance was President Ronald Reagan’s 1987 nomination of the extreme conservative Republican Robert Bork to the Supreme Court. The second was President George H. W. Bush’s 1991 nomination of Thomas. The third was President George W. Bush’s 2005 nomination of Alito. A notorious instance was Senator Mitch McConnell’s refusal to consider President Barack Obama’s 2016 nomination of Merrick Garland to fill a vacancy on the Supreme Court which McConnell held open in the hope that Trump would win the presidency and nominate a conservative Republican.
If democracy survives Trump 2.0 and the damage done by him and his Republican enablers, and if Democrats sweep to political power, they must undertake a Second Reconstruction. As they oppose those now trying to destroy America’s democracy, so, when the time comes, they must punish those who tried. Priority one must be to reform the federal judicial system and law enforcement agencies from the top down. They must not be squeamish. I shall not elaborate the steps to investigate and, if the evidence warrants, charge and prosecute—and, I hope, convict and incarcerate—every judge, official, staff, and agent who have tolerated, allowed, directed, or committed violations of the law or the Constitution. Since Trump will pardon many of these people, Congress must find ways to hold them accountable. Anything less than a vigorous cleansing and thorough reform will further contribute to the decay of, and further undermine Americans’ trust in, the legal system and the rule of law which make democracy, “with liberty and justice for all,” possible.
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