The federal judiciary's grave legitimacy crisis
A Texas judge's absurd abortion pill ruling is the latest sign of how bad it's gotten.
By David R. Lurie
The nation’s federal courts are living on borrowed legitimacy, and the supply is running out.
On Friday, a Trump-appointed judge with a long history of anti-choice activism ordered the FDA to take a medication that is safely used to perform most abortions off the market, based on the thinnest of legal rationales. The same day, Supreme Court Justice Clarence Thomas gaslit the nation by saying he’d seen no need to disclose the hundreds of thousands of dollars’ worth of largess he received from a right-wing billionaire.
These two apparently disparate events are fruit of the same poison tree. They each reflect a fundamental problem with the GOP’s decades’ long effort to remake the nation by packing the federal courts with extremists: A judiciary at odds with, and even contemptuous of, most of the nations’ citizens is not sustainable.
A brief history of SCOTUS’s decline since Bush v. Gore
During what can now fairly be titled the federal courts’ “Trump Era,” Americans’ trust in the judicial branch has plummeted. In the wake of the Supreme Court’s overruling Roe, 58 percent of the nation now disapproves of how the Supreme Court is handling its job, and less than half the country has confidence in the institution. This is hardly a surprise; indeed, what’s surprising is how long it has taken most of the nation’s citizens to realize that the packed Supreme Court has become a partisan tool of the Republican Party, and a direct adversary to the nation’s foundational principles of democracy and civil rights.
Even before Trump and Mitch McConnell packed the Supreme Court with a right-wing supermajority, GOP-appointed justices were pursuing a brazenly anti-democratic project, which only became more audacious as each judicial attack was met with little pushback.
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The right-wing justices launched an early salvo in 2000, when the Court employed a tortured interpretation of the 14th Amendment’s Equal Protection Clause — a provision placed in the Constitution following the Civil War to protect Black Americans and other members of minority groups from invidious discrimination — to prevent Florida from recounting the votes of its citizens in that year’s presidential election, thereby effectively installing George W. Bush.
In its Bush v. Gore decision, the court’s then five-member right-wing majority stated that their broad application of the 14th Amendment to justify the placement of the Republican candidate in the White House would not be extended to other cases, such as those involving discrimination against Black Americans. And the court has since been true to its word.
In 2013, under Chief Justice John Roberts, the court reached out to nullify the key enforcement provisions of the Voting Rights Act. This paved the way for a massive wave of changes in state voting laws, and legislative districts, many of them transparently designed to weaken minority voting power and thereby undo one of the central achievements of the civil rights movement of the 1950s and 1960s.
In addition, the court ruled in 2019 that the US Constitution places no limits on the partisan gerrymandering of legislative districts that, in states like Wisconsin, North Carolina, and Tennessee, has so diluted the votes of many citizens as to make a farce of the democratic process. In addition, it appears several justices are interested in a dubious reading of the Constitution that would prevent governors and state courts from addressing such largely GOP-driven gerrymandering, even when it squarely violates the state constitutions state courts and elected officials are charged with enforcing.
The Roberts court also set out to open political campaigns to brazen corruption by gutting campaign finance laws, including in the 2010 Citizens United case, which voided key limits on dark money in political campaigns, as well as a 2021 decision that protected the identities of many dark money donors from even being disclosed. But these deeply partisan decisions proved only to be a preamble for what was to come.
Right-wing judges are way out of step with public opinion
As the two years since Trump’s failed insurrection against democracy have demonstrated, the vast majority of GOP “leaders” either support, or are unwilling to oppose, the Republican Party’s movement toward outright authoritarianism. And that same tendency is evident in the rulings of Trump Era judges.
In last year’s Dobbs decision, the Trump Era Supreme Court supermajority used a case that was initially about a 15-week abortion ban to overrule Roe entirely. As I observed after a draft of the decision was leaked, it was all but inevitable that the GOP, along with the Court, would be met with a public backlash. But that backlash is only leading to a doubling down upon extremism, including among some right-wing jurists.
It should not be surprising, however, that extremists the GOP has installed in the judiciary — chosen for their ideological fervor, not their political savvy — are determined to use their lifetime judicial appointments to impose right-wing economic, political and social policy agendas on the nation, whether the nation wants them or not.
In his Dobbs opinion, Justice Alito claimed the Supreme Court was voiding a fundamental individual right to bodily autonomy in the interests of democracy, and leaving the matter to be resolved by “citizens trying to persuade one another and then voting.” But that statement, like so much of the rhetoric accompanying the Supreme Court’s recent attacks on democracy and fundamental rights, was transparently disingenuous.
The court was, in fact, seeking to leave the issue to be decided by gerrymandered red state legislatures, in the hope and expectation that they would void reproductive rights, regardless of the fact that such rights are supported by most of the populace throughout the nation. But that strategy assumed a public passivity that was not to be.
In the wake of Dobbs, voters throughout the nation immediately began expressing their opposition to the Supreme Court’s attempt to void a fundamental right. Even voters in red Kansas definitively expressed their support for reproductive rights in a referendum. And the GOP’s opposition to reproductive rights was a major factor in its underwhelming midterm election performance. Accordingly, it is now clear that the GOP’s commitment to anti-choice extremism is going to impose a huge electoral cost for the foreseeable future.
That leaves it to Trump Era federal judges to take further steps to impose the right’s anti-choice agenda on the nation.
Such is the import of Trump-appointed Texas Judge Matthew Kacsmaryk’s ruling of last week, which seeks to bar access nationwide to a medication used to safely perform most abortions, despite the fact that the medication was approved by the FDA decades ago, in accordance with clear legislative authority and settled rules.
Others have explained how analytically sloppy, and transparently mendacious, Kacsmaryk’s decision is. The ruling largely amounts to a repackaging of briefs filed by various extremist organizations that share the judge’s fierce opposition to reproductive rights. Kacsmaryk’s opinion also adverts to the claim that a fetus is a “person” under the 14th Amendment, an argument that anti-choice activists want to employ as a basis to garner future judicial rulings declaring abortion to be unconstitutional.
Even before Kacsmaryk issued his widely anticipated ruling, Sen. Ron Wyden suggested the Biden administration should refuse to give it effect, a call others have taken up in the wake of the decision.
The White House is, understandably, hesitant to endorse such a step, particularly given the still strong odds they have of getting the Texas judge’s ruling (which was immediately met by a contrary ruling in Washington state) overturned. Yet even if the Texas’s judge’s ruling is voided, similarly audacious judicial actions are all but certain to come down the pike, including from the Supreme Court.
It’s time to have a serious talk about ignoring court orders
Lawyers have long been taught that violating judicial injunctions is beyond the pale. For example, the Supreme Court ruled that the Rev. Martin Luther King and others could not challenge the constitutionality of a denial of their request for a parade permit by Birmingham, Alabama, officials because the civil rights leaders had earlier defied an injunction against their march.
But, as Ian Millhiser has discussed, the history of the nation tells a more complicated story. In its infamous 1856 Dred Scott decision, a politicized Supreme Court majority attempted to fully instantiate “slaveholders’ rights” in the Constitution, including by declaring that Black Americans could not be citizens and holding that the Missouri Compromise, which limited the expansion of slavery, was unconstitutional
In his First Inaugural Address, Lincoln stated that, if citizens allowed the “policy of the Government upon vital questions affecting the whole people … to be irrevocably fixed by decisions of the Supreme Court … [they] will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.” Lincoln proceeded to defy the court’s ruling, including by signing legislation outlawing slavery in federal territories.
After the election of Franklin Delano Roosevelt, a similarly extreme right-wing Supreme Court majority tried to nullify New Deal reforms Congress enacted in response to the Great Depression, just as the court had previously voided state laws protecting workplace safety and even (in a notorious decision that gave a name to that era of judicial history, Lochner v, New York), a statute limiting child labor. While FDR’s derisively (and inaccurately) labeled “court packing” plan (which would have expanded the size of the Supreme Court as jurists reached age 70) failed, the court’s majority ultimately reversed course, after recognizing that its effort to undermine the economic policies of duly elected leaders had become untenable.
It seems increasingly clear that, unlike Lochner Era justices during the New Deal, the Trump Era judges and justices of today are unlikely to relent in their effort to remake the nation by imposing their preferred reactionary policies, no matter how at odds those policies may be with the majority of the nation. Indeed, as the corrupt conduct of Justice Thomas demonstrates, some members of the Trump Era judiciary appear to believe there is no longer a need for them even to maintain an appearance of judicial probity.
We now know that — even as Ginni Thomas was raking in hundreds of thousands of dollars from “family friend” Harlan Crow — Thomas himself was receiving lavish gifts of travel and other benefits from the billionaire, a right-wing activist, with an intense interest in the subject matters of many cases that come before the Court.
On that background, the fact that Thomas refused to recuse himself from a case implicating his wife’s conduct in the wake of the 2020 election seems not only unsurprising, but indeed par for the course.
Given the direct and sustained attack of Trump Era judges on the democratic and constitutional order — and their apparent disinterest in the judiciary’s dissipating legitimacy — the nation’s citizens and leaders may soon face a choice between obeisance to overreaching judicial rulings or to the Constitution. And like Lincoln, who faced a similar dilemma during another time of national upheaval, today’s leaders may conclude that upholding the prerogatives of an ideologically driven judiciary, at the expense of democracy and fundamental rights, is unacceptable.
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