Right-Wing Federal Courts

Click here for an article at Slate by By Dahlia Lithwick and Mark Joseph Stern, entitled "A Federal Judge Condemned the 'Roberts Court’s Assault on Democracy.’ It’s About Time."

U.S. District Court Judge Lynn Adelman criticizes the five conservative justices on the Roberts Supreme Court in an upcoming Harvard Law & Policy review article. The article begins, brutally:

By now, it is a truism that Chief Justice John Roberts’ statement to the Senate Judiciary Committee that a Supreme Court justice’s role is the passive one of a neutral baseball “umpire who [merely] calls the balls and strikes” was a masterpiece of disingenuousness. Roberts’ misleading testimony inevitably comes to mind when one considers the course of decision-making by the Court over which he presides. This is so because the Roberts Court has been anything but passive. Rather, the Court’s hard right majority is actively participating in undermining American democracy. Indeed, the Roberts Court has contributed to insuring that the political system in the United States pays little attention to ordinary Americans and responds only to the wishes of a relatively small number of powerful corporations and individuals.

The article says:

[Adelman's] article brings into clear relief the court’s systemic attack on voting rights for minority and other marginalized communities, by way of striking down a key section of the Voting Rights Act, as well as repeated blessing of voter suppression and decisions not to adjudicate political gerrymandering. He notes that the court privileges the wealthy and corporate interests at the expense of the public. He lays out in detail the rise of the conservative legal movement, starting with the infamous 1971 Lewis Powell memo that served as a right-wing call to arms and tracing its progress through the current well-funded effort to reverse the New Deal in the courts. The article ultimately portrays the slow movement of the Supreme Court to the right—and then the far right—through a long line of cases that reversed the Warren court’s protections for minority groups and poor and working-class Americans. It shows how the court has undermined unions and boosted corporate interests. The court, he notes, has greatly contributed to income inequality, health care inequality, and the hollowing out of the American middle class.

Adelman says:

We are thus in a new and arguably dangerous phase in American history. Democracy is inherently fragile, and it is even more so when government eschews policies that benefit all classes of Americans. We desperately need public officials who will work to revitalize our democratic republic. Unfortunately, the conservative Justices on the Roberts Court are not among them.

The article continues:

Judge James Ho, a Trump appointee to the 5th U.S. Circuit Court of Appeals, has assumed the role of robed Fox News commentator. He disparages women who get abortions, as well as judges who uphold their right to do so. He claims that we can stop mass shootings by shielding police from lawsuits when they accidentally murder innocent people. He intentionally misgenders transgender litigants—as does his colleague, Kyle Duncan, a fellow Trump appointee. Another judge on the 5th Circuit, Edith Brown Clement (a George W. Bush appointee), penned a partisan attack on her colleagues. And, under the influence of Trump’s judges, the 5th Circuit as a whole has begun defying Supreme Court precedent in a series of blatantly political decisions.

A startling number of Trump judges appear to believe that, like Ho, their job is mainly to own the libs in print. Neomi Rao, a Trump judge on the U.S. Court of Appeals for the District of Columbia Circuit, has created a cottage industry out of writing preposterous Trump-friendly polemics. On the same morning that South Texas College of Law Houston professor Josh Blackman expressed his outrage at Adelman’s article, Rao issued yet another dissent that would protect Trump, this time by denying the House of Representatives access to the unredacted Mueller report. Rao’s position is so extreme that Thomas Griffith, a conservative George W. Bush appointee, penned a separate concurrence just to shred it. It is impossible to ignore the fact that Rao keeps running interference for the Trump administration, making arguments that are promptly shunned. And it is difficult to avoid the conclusion that her lengthy, contorted dissents begin with the proposition that Trump must triumph and work backward from there.

The U.S. courts have been steadily drifting to the right since Lewis Powell's memo in 1971, and in recent years the drift has become much stronger. The nightmare scenario is Trump somehow being reelected; it's possible, if that were to happen, that Trump would get to replace a couple of liberal Supreme Court justices, presenting the country with a 7-2 conservative majority: disaster.