“What a sad marker of the times”. So wrote Michigan Chief Justice Barbara McCormick in striking down an absurd attempt by Republicans to block the citizens of Michigan from being able to vote on a ballot initiative to enshrine the right to abortion in the state’s constitution. McCormick could have easily been talking about our sclerotic and dysfunctional legal and judicial system in which she serves that has been both extraordinarily ineffective in dealing with the brazen lawlessness of those with power and, far worse, infected by a cancerous growth of hyper-partisan hacks who give credence and legal sanction to that lawlessness.
The actual case that Justice McCormick was addressing referred to the Republicans’ attempt to block the ballot measure that would enshrine the right to an abortion on the laughable grounds that the ballot measure lacked clear spaces between words in certain areas in a summary of the initiative, despite it receiving over 750,000 signatures and nary a complaint about its wording. What’s more absurd about the Republicans’ objections is that this was merely a function of the font used to print the summary and the full ballot proposal, which was also available to any signatory, did have clear spaces between all words. At least two fellow members of McCormick’s on the Michigan Supreme Court, both Republican, were actually willing to prevent Michiganders from voting on abortion access simply because of a font issue. Thankfully, these two judicial hacks were in the minority.
Nowhere has that “sad marker” been on more impressive and alarming display than the actions of US District Court Judge Aileen Cannon of Florida in the case involving the government documents, including some of our country’s most important secrets, including those related to nuclear, Iran, and China, that Trump packed in secret, stole and hid at Mar-a-Lago, was told he could face legal exposure if he kept them, pretended to return them to the government, then lied about retaining them, and apparently is still hiding from the government. Needless to say, it is illegal for Trump to be holding any classified documents outside a secure area and he also has no right to retain government documents, hundreds of thousands of which he was and perhaps is still also illegally hiding. More worrying is the fact that some of the folders marked classified were empty, indicating that the documents within them had been removed and were perhaps now missing. If it was anyone other than Trump, they would have already been indicted and probably been required to post bail and certainly had their ability to travel restricted. Instead, Trump is now using his both hand-picked and unqualified judge, Judge Cannon, to actually prevent the government from continuing its investigation or even trying to analyze whether our national security has been compromised.
The judge’s ruling was a veritable mountain of judicial hackery. She openly questioned whether hers was the right venue for the case and then just decided to go ahead anyway. She ruled that Trump had a need to review and perhaps even retain the documents because he might face reputational damage should they leak or provide a basis for a criminal charge. Needless to say, every criminal who has ever had evidence seized would love this “new rule” to be applied to them and already some 1/6 defendants have tried (and failed) to receive the same treatment. The judge declared that Trump might have attorney-client and/or executive privilege claims on some of the documents, despite Trump’s legal team not even making those arguments. Similarly, she seemed to give credence to Trump’s claims of declassification, telepathically or otherwise, which Trump’s legal team have repeatedly refused to claim. While providing defenses to the former president that his lawyers refused to, she ignores the traditional deference to national security issues when she refuses to take the government’s word that documents marked classified really are classified and demands that they be reviewed by a special master and Trump’s lawyers who may not have the sufficient clearances to review those documents, further endangering national security.
Whether she recognized it or not, Cannon’s ruling also created two enormous separation of powers issues. First, the judicial branch is enjoining the executive branch from even performing an investigation. Second, she claims, with no evidence presented, that Trump may have executive privilege claims over some documents even though he no longer has executive privilege power as a former president. She ignores the fact that those documents are still retained within the executive branch, meaning there is, by definition, no violation of privilege. More importantly, Cannon has allowed Trump to once again abuse the legal system to both delay his accountability; to deflect from his actual crime (by focusing on his mythical declassification which would still not negate the fact that he was still holding stolen government documents); and to essentially put his accusers on trial.
While Cannon has decades of this kind of partisan judicial hackery ahead of her, the judges in the 5th Circuit Court of Appeals (5CA), which covers Texas and parts of Mississippi and Louisiana, already have years of similar experience behind them. The 5CA is where Republicans’ hand-picked judges give the death penalty to Democratic policies. In just the brief two years of the Biden administration, the state of Texas itself has filed 20 lawsuits against Biden administration polices and 19 of them are presided over by Republican judges. Filing cases in certain far-flung 5CA jurisdictions means that the case will have just a 5% chance of being heard by a Democratic judge. To illustrate just how common and abusive this situation has become, the state of Oklahoma is suing the federal government to transfer a federal prisoner held in Louisiana back to the state so he can be executed and have filed their case in the Northern District of the 5CA where they know with 100% certainty which judicial hack of a judge will get the case.
It was the 5CA where judges have effectively seized control of ICE and border control negotiations with Mexico from Biden’s executive authority, a brazen power-grab by the judicial branch. It was the 5CA that blocked Obama’s attempt to update the overtime rules for the first time in 30 years, upending an 80-year precedent for using salaries as a proxy for responsibilities. It was the 5CA who made the absurd ruling that the zeroing out of the individual mandate meant that the entire ACA was now unconstitutional. The same 5CA judge that tried to rule the ACA unconstitutional is now trying to take another sledgehammer to that program by allowing employers to cite a religious objection to providing HIV medication through their insurance plans, potentially allowing the denial of any preventive care for what could be considered a “sin”. At the same time the 5CA has ruled that websites no longer have a First Amendment right to moderate the speech that appears on their platforms, basically eradicating the First Amendment rights of corporations that the HIV decision relies on. The judicial hypocrisy is boundless. Another 5CA judge has cited dissents in the Supreme Court’s Bostock case as though they were precedent in order allow health care companies to discriminate against the LGBTQ community.
The Fifth Circuit has now ruled that the Consumer Financial Protection Bureau is unconstitutional because it is funded outside the normal annual congressional appropriations channel. But that is also true of the congressionally approved funding mechanism for the Federal Reserve, the Federal Deposit Insurance Corporation, the Federal Housing Finance Agency, the National Credit Union Administration, and the Office of the Comptroller of the Currency. If the decision stands, it will eradicate virtually every consumer financial protection currently on the books. Finally, it was the 5CA that gave the green light, eventually upheld by SCOTUS, to the Texas vigilante abortion ban and its avoidance of judicial review, leaving Texans without access to a legal and constitutional right until SCOTUS finally did overturn Roe. Not to be outdone, the Eighth Circuit has now effectively blocked Biden’s student loan forgiveness program, while trying to dress that result up as merely an administrative stay even as the question of the plaintiff’s standing, which has been denied by a lower court, remains to be resolved. In other words, the court does not even know whether the plaintiffs have a right to sue but will block the program’s implementation anyway.
Of course, the Supreme Court’s overturning of Roe upended a 50-year precedent with no real change in the public attitudes or the law, only a change in the ideological makeup of the Court. The decision is one of the few times the Court has stripped away a right it had previously conferred and the only time it has done so for a right that still enjoys support from a vast majority of Americans. The conservative majority’s theories about “originalism” and the reliance on “historical tradition” are so both ill-defined and prone to cherry-picking that they are essentially meaningless, just rubrics to justify the majority decision. Worse, those theories are discarded at will when they are not useful for the majority opinion and replaced with theories like the “Major Questions Doctrine” which was made up out of whole cloth less than 30 years ago. The result is that laws against owning a gun with serial numbers scratched out, which are a historical tradition since 1968, are now unconstitutional literally on the grounds that guns did not have serial numbers in 1791.
If it wasn’t so deadly, this kind of moronic, retrograde judicial philosophy might actually be laughable. And you’ll notice that it only will apply to guns, abortion, and gay and trans rights and not to, say, the current legal fiction that corporations have free speech and religious rights similar to individuals which is clearly not something the Founders envisioned. Of course, the Founders’ true originalism was creating a democracy, albeit one that only included only privileged elites. But, again, this Court has shown nothing but disdain for our fragile democracy through its decisions regarding campaign finance, voting rights, and partisan gerrymandering, as well as its unwillingness to actually resolve critical disputes between the legislative and executive branches, creating the very minority rule that the Founders feared.
While the conservative majority’s opinions rely on the amorphous meaning of originalism, at least they are forced to actually provide a basis for the result. That is not the case in the Court’s increasing abuse of the shadow docket, the largely procedural process where the Court determines what cases will be fully briefed and argued before the Court. Like the Court’s inconsistent application of originalism, so too the criteria it uses for shadow docket decisions are ill-defined and seemingly political. In some cases, the Court grants stays that allow the government to continue to enforce policies that every lower court has deemed illegal; in other cases, it grants injunctions where no lower court has given one or lifts stays that every lower court has granted. The majority of these decisions come with no analysis or explanation for the basis of the decision and frequently without even a record of how each Justice voted. Worse, the Court has begun treating their shadow docket rulings as both new law and precedent that binds lower court decisions, despite the fact that the shadow docket is primarily supposed to deal with procedural issues and not decisions on the merits. Of course, it is difficult for lower courts to follow these supposed shadow docket precedents when the Court has provided only a cursory summary of its rationale or no basis or all.
Remarkably, the nine Supreme Court judges are the only judges in this country that are not bound by a written code of ethics. Over a four-year period from 2003–2007, Clarence Thomas neglected to report nearly $700,000 of his wife’s income on his financial disclosure forms. He also appears to have not reported her income in his 2009 disclosure as well. After this was exposed, Thomas revised his disclosure for 13 prior years. Thomas has piloted a charitable effort to restore a Georgia cannery where his mother worked that was largely financed by a multi-millionaire friend of the Thomases who also gave half a million dollars to a right-wing organization that Thomas’ wife Ginni founded and ran. Thomas and Justice Scalia both attended a Koch Brothers political event prior to the Citizens United decision. Ginni Thomas’ political activism has always created potential and real conflicts of interest for Justice Thomas, but none more clear than her support of the Stop the Steal effort, including attending the 1/6 rally and Thomas’ lone dissent in allowing the 1/6 Committee to access executive branch documents that include messages between Ginni and Mark Meadows. Thomas has now at least temporarily stayed a lower court decision that forces Senator Graham to testify about his attempts to overturn the election in Georgia, testimony that may implicate his wife. Thomas, Alito, Gorsuch, and Barrett have all recently made overt appearances with Republican politicians, even as they claim they are not partisan. There have been no consequences for any of this for any of them.
While the Supreme Court may not have or abide by a code of ethics, other judges must, but the punishment, or lack thereof, for breaches are almost equally toothless. In 2021, 131 judges oversaw cases involving litigants whose stock they held with nary a repercussion at all. In Ohio, State Supreme Court Justice Pat DeWine has refused to recuse himself from in at last three redistricting cases involving maps that were drawn by a committee of which his father, Mike DeWine, also the Ohio Governor, is a member. Justice DeWine has dissented in four decisions which ruled that the newly redrawn Ohio maps violated the state constitution, essentially endorsing illegal maps his father and the legislators who work with his father, who is also up for re-election this year, had created.
Despite the Ohio Supreme Court ruling the maps violate the state constitution, Ohio’s Republican legislators got federal courts to step in and allow these unconstitutional maps to be used for November’s elections under the Purcell principle that it was too close to the election to change them. Ohio’s legislators continue to defy their own Supreme Court by refusing to draw a constitutional redistricting map. But, because of the Purcell principle, there are four states — Ohio, Georgia, Alabama, and Louisiana — that are using maps that every judge who has examined them has ruled as unconstitutional. Those four states comprise about 10% of the total number of seats in the US House of Representatives and the projected handful of additional Republican seats these illegal maps may produce could tip control of the House.
The delays that force voters to cast their ballot in what are unconstitutional districts stand in pretty stark contrast to the speed with which the federal courts, especially the Fifth Circuit, enjoin Democratic policies, often with nationwide injunctions. And they also contrast with other judicial delays that often render the issue moot. Former White House Counsel Don McGahn refused to testify to the House Judiciary Committee as it considered impeachment proceedings against Trump and the Committee eventually sued to force that testimony in August 2019. But McGahn was able to drag out his immunity and privilege claims in the courts for so long that the Committee eventually reached a compromise with McGahn that ended the case in May 2021, nearly two years after the case was filed and longer after Trump’s both first and second impeachment trials. Similarly, the House Oversight Committee sued to obtains details about Trump’s tax returns and financial information in April of 2019, information that might have also informed the impeachment trials. And again, the delays in rendering a final judicial judgement eventually resulted in an agreement to settle in September 2022, over three year later.
We are seeing the similar delays that once again frustrate the House’s 1/6 Committee. Judge Carl Nichols has had 10 challenges to the Committee’s subpoenas that were filed between December 2021 and May 2022 that are awaiting a decision. Until that decision is rendered, the Committee is stymied from getting the records it is seeking. Of course, even if Nicholls now acts expeditiously, chances are the appeal process will run out the clock on the 1/6 Committee, which will almost certainly be disbanded next January if Republicans win the House. Nichols is also the judge that has allowed Steve Bannon to remain free while he appeals his conviction for contempt in defying the Committee’s subpoena, yet another delay in the actual enforcement of justice.
When thinking about how judicial delay has frustrated oversight of the executive branch, it might be worth remembering that the Special Prosecutor issued a subpoena for Nixon’s White House tapes in April 1974 and the Supreme Court rendered its verdict forcing Nixon to release the tapes on July 24, 1974, just three months later. I think it is safe to say that would never happen today.
We no longer have a functioning judicial system, even when you allow for the traditional two-tier system of justice that protects the privileged and wealthy and punishes the poor and minorities. The idealogues in the Supreme Court’s conservative majority, (five of whom have been appointed by Presidents who originally lost the popular vote), have no regard for existing legal precedent and that fact alone has actually set a precedent for the lower courts to impose their own results-oriented decisions. Conservative lower court judges now routinely cite earlier Supreme Court dissents as law or ignore the law as currently written in the hope or belief that the new Supreme Court will adopt their views. Judges like Cannon make the most baseless rulings in the hope or belief it will lead to an appeals court or Supreme Court seat down the road. Venue shopping has virtually guaranteed that certain plaintiffs can get the result they desire and allows the most crackpot legal theories to almost certainly get a hearing in front of the Supreme Court.
The courts’ results-oriented decision making, complicity in delaying accountability, and novel interpretations have created a sense of legalized lawlessness in the country. And when the law simply devolves into judicial whim, it becomes the rule of lawless and an important step toward fascism.