When I clerked for a federal district judge, I observed the entire process of several trials in our court. The jury selection. The judge’s opening remarks to the jury. The opening statements by the attorneys. The parties’ direct and cross examination of witnesses. The preparation and reading of jury instructions. And, finally, the reading of the verdict.
I was struck by the seriousness and solemnity that trial participants brought to their respective tasks. I imagined this same scenario playing out in courtrooms all over the country every day. The American legal system is truly miraculous. Our courts are not a mere patina of legitimacy over the decisions of autocrats as in China, Russia, Venezuela, Cuba, and other totalitarian regimes. Courts every day search for truth without a predetermined outcome, leaving decisions in the hands of sober-minded judges or juries of American citizens.
Overall, the courts were careful, deliberate, and interested in applying the law and legal precedent to the case before them, wherever the law and precedent led. Disappointed parties accepted verdicts and all parties believed they had had an opportunity to air their grievances and have a resolution.
In the large majority of cases, the American legal system works in this manner. It is a tribute to the maturity of the United States as a country that the rule of law is so strong and that citizens, by and large, can conduct their personal and economic affairs in peace and security and without resorting to violence to resolve disputes. Yet since Donald Trump’s inauguration, the courts have taken on a heightened role in our discourse, from the executive orders on immigration to the confirmation process for Neil Gorsuch.
From Working the Refs to Picking Them
For too many Americans, the American legal system is no longer simply the arbiter of what the law means and how it applies to a given set of facts. Instead, courts have become a sort of referee, weighing in on contentious topics despite whether the issue is within the judicial branch’s bailiwick or it is better to let politics and the will of the people determine the outcomes. It is no wonder Supreme Court and appellate court nominations have become battles royale. It is one thing to work the refs during a game. But the nominations process has become about picking the refs.
Consider the Supreme Court Obamacare decision back in 2012 and the recent rulings on President Trump’s proposed immigration ban. In the Obamacare case, the Obama administration swore up and down on a stack of Bibles that Obamacare was not a tax. Yet the Supreme Court upheld the Obamacare scheme on the grounds that (1) courts should look at every possible interpretation of a law before declaring it unconstitutional; and (2) because Obamacare fell within Congress’s taxation power, it was constitutional. In other words, the court saved Obamacare by interpreting it in the way that its own lawyers foreswore in open court.
The reaction was telling. Obama administration staffer Patrick Gaspard tweeted: “It’s constitutional, b-tches.” Some deep legal reasoning, that. Gaspard’s view of the Supreme Court was not that of an interpreter of the Constitution. He viewed the court as a referee that handed him a win, and that was all that mattered.
Compare this to lower court findings on the Trump travel ban. The president has clear statutory authority to prohibit the entry of foreign nationals determined to pose a national security risk. The president exercised this authority to impose a refugee pause from countries that either were sworn enemies of the United States (Iran) or failed states with no effective central government (Syria, Libya, Somalia).
The purpose of the pause was to give the government time to, if possible, improve vetting procedures to minimize the risk that terrorists would enter the United States posing as refugees. After one court enjoined the first order, the Trump administration wrote a new one, addressing each concern the courts had raised. No matter. Two judges still enjoined this injunction.
The judges claimed that President Trump’s statements, primarily as a candidate, showed that the intent of the executive order was to impermissibly ban Muslims from entering the United States. These were not statements Trump made in court nor under oath. And the stated basis for the refugee pause—that the U.S. could not effectively vet refugees from war-torn, anarchic countries or enemy states—was rational, if not demonstrably true.
Did the courts bend over backwards to find a basis to rule Trump’s executive order constitutional, as the Supreme Court had with Obamacare? Not at all. Did they consider the letter of the law and rely on the statements the Justice Department made in court? Nope. Rather, they presumed to psychoanalyze the president.
How This Looks to a Typical American
A non-lawyer would look at these two cases and think the courts predetermined the outcomes they wanted then twisted the law to get these outcomes. To paraphrase William Jennings Bryan, the loudest voices opposed the travel executive order and supported Obamacare, so the courts decided to follow their lead and looked up the arguments later.
A citizen viewing this jurisprudential spectacle could be forgiven for thinking that the law can be twisted in any way to get to a desired outcome. When the desired outcome calls for a “living Constitution” approach, the court will adopt that approach. If the desired outcome requires strict construction of the Constitution and statutory language, strict construction it is.
This does violence to the concept of the rule of law. As a result, judicial opinions in controversial cases become nothing more than mere fancy word salads designed to justify an outcome rather than apply the law to a specific case. This inevitably diminishes respect for the rule of law by dressing raw power plays in its florid language.
Fiating Political Questions Undermines Faith in the Law
The Left has pioneered using courts to shut down debate. Once the Supreme Court has ruled upon a case, for the Left, it becomes “settled law.” That is, it becomes a way for the Left to tell its political opponents to shut up and move on. It terminates debate. Indeed, Roe v. Wade was intended to bring finality to the abortion question. Of course, it had no such effect.
Taking what is fundamentally a political question that depends on individuals’ personal beliefs and supposedly “settling” it through nine justices’ interpretation of the law only frustrates the half of the country that has a different view. It is no wonder that Democrats cling to their favored rulings as “settled law” or, as Sen. Dianne Feinstein put it, “super-precedent.” They can neuter their political opposition on controversial social issues by hiding behind court rulings and saying “Settled law! The debate is over!”
This is not confined to the dawn of the Trump administration. Consider the Supreme Court’s decisions in other matters in the last two decades. On many cases, the justices issue rulings in unpredictable combinations. Yet for the hot-button social issues—gay marriage, gun rights, affirmative action—too often it is easy to predict exactly how justices will rule.
The very term “swing justice”—often used to describe Justice Kennedy—is quite telling. We think of “swing voters” as political actors that can go different ways in elections. The fact that the political term “swing” is used to describe a Supreme Court justice is an indication that the justices are viewed to some degree as political actors.
Democrats have encouraged this way of thinking about courts, and have expanded it from social and public policy to economics. Witness the arguments against Neil Gorsuch during his Supreme Court confirmation hearings. Several Judiciary Committee members complained that Gorsuch would not support the “little guy” over big corporations, Democrats’ bête noire.
But in America, even Democrats’ bêtes noire are entitled to equal justice under law. That Democrats—many of whom are lawyers and should know better—attack a judge for “siding with” big corporations rather than the “little guy” shows just how badly they have perverted the concept of justice, the role of the courts, and the rule of law. Democrats would have Americans think the most sympathetic party should win cases, not the party with the law on its side. This transforms courts from neutral arbiters to the tip of the spear of social justice.
Executive Abuse Has Contributed to Declining Public Trust
The executive branches of both federal and state governments have also repeatedly abused their powers to achieve their desired policy results, heedless of the statutory language and original intent of the laws they are sworn to enforce.
For years, the Obama administration used the term “prosecutorial discretion” as an excuse for not enforcing immigration law. The term sounded technical and scholarly, an example of the “constitutional law scholar” in the Oval Office deploying his legal prowess on behalf of the Left’s preferred policies. In fact, the Obama administration bastardized the beyond recognition, turning it into a doctrine of non-enforcement of laws altogether.
Prosecutorial discretion recognizes that the government cannot prosecute every crime. It is most definitely not a doctrine under which entire laws are preemptively declared not an enforcement priority, effectively legalizing the ostensibly prohibited conduct. For fans of “The Wire,” what Obama did was the same as when District Commander Bunny Colvin declared certain areas of east Baltimore as low-priority drug enforcement zones, leading to the creation of “Hamsterdam,” an area where drug sellers and purchasers could operate freely. When Colvin revealed his actions to the Baltimore police brass, a stunned Deputy Commissioner Rawls exclaimed, “You legalized drugs!”
The Corruption Is Becoming Endemic
Yet another example is government prosecution of the journalists who secretly videotaped Planned Parenthood personnel discussing how they harvest and sell organs from aborted fetuses and, in some cases, may actually be killing infants that emerged from the womb alive during unsuccessful abortions. These intrepid journalists found evidence of possible heinous crimes—up to and including murder—and for this the state indicted them. Yetjournalists who had uncovered violations at chicken farms using the same techniques were lauded as heroes and the chicken farms, not the journalists, were investigated and prosecuted.
Ambitious state attorneys’ general have likewise used law to abuse unpopular industries. Several attorneys general, many with their eyes on governor’s mansions, banded together as the “Green 20” to wage an aggressive legal war against companies they believed were harming the planet. Using a flimsy legal foundation that these companies had misled their stockholders and the public about climate change, these attorneys general issued subpoenas for enormous numbers of records from these companies and think tanks opposed to their climate change agenda. These attorneys general sought to elevate a political dispute regarding the causes and extent of climate change to a criminal activity.
Even if they did not indict a single company or think tank, the Green 20 would force these companies and think tanks to defend themselves. Litigation is a time-consuming and expensive process. Not every company is able to withstand the rigors and expense of major government investigations and continue to function. The Green 20 know that. The process is the punishment.
Celebrity Culture Isn’t Helping, Either
Finally, our judicial system has been caught up to some degree in America’s current celebrity culture. Judges are human, and it is not impossible to see at least some of them as being influenced by what they expect to be the public reaction to their rulings. The judges in the immigration executive order cases have been hailed as heroes, and their opinions suggest they are aware of their role in the “Resistance.”
Note the cult following that has grown up around Justice Ruth Bader Ginsburg—the “Notorious R.B.G.” Ginsburg is the only Supreme Court justice I have ever seen on T-shirts and bumper stickers. Although Ginsburg may not have actively abetted this phenomenon, she has played to this crowd. During the election season she publicly bad-mouthed Trump. More recently, when asked what she would change about the Constitution, she said the Electoral College.
It was a flippant remark that obviously played to the liberal crowd smarting from Hillary Clinton’s defeat, but it is stunning that a justice of the Supreme Court would cavalierly suggest abolishing an essential element of the Founders’ constitutional design as a cheap applause line.
In 2000, liberals bemoaned the Supreme Court’s intervention in the Bush-Gore recount. Oh, how they hated judicial activism then. I had friends who ranted about how the Supreme Court had inserted itself into a controversy and picked a side. I remember telling them: Now you know how it feels. I hoped that, after being hit with some supposed judicial activism, the Left would take a more modest approach to the courts.
Sadly, my hopes were misplaced. A powerless Left now is turning more frequently to the courts and abusive state attorneys general to achieve its desired policies. In so doing, it is undermining the respect for the rule of law that is essential to a functioning democracy.
