Elie Mystal—an Above the Law windbag—mercifully has taken a break from comparing Republicans to Nazis and blogging cringey clickbait about seminude Harvard Law Professor Alan Dershowitz to shriek instead about how President Trump and Senate Republicans are “pack[ing] the courts with ultraconservatives.”
In a rambling screed at The Nation, Mystal frets about some dark fruit that has been produced by President Trump’s “illegal reign,” namely, “far-right legal arsonists” have helped install, at last count, 123 “torture advocates, LGBTQ antagonists, rape apologists, Islamophobes, . . . Confederate-monument defenders [and] anti-abortion fundamentalists” to the federal bench—with more on the way.
Mystal’s rhetorical drive-by—the piece attacks all current Trump judges but focuses especially on the “worst of the worst,” ominously dubbed the “Seven Injustices”—is but the latest salvo in a months-long progressive campaign to delegitimize the federal courts, particularly the Supreme Court.
Because if progressives don’t own it, it’s illegitimate, of course.
As usual, the Right is blind to an emerging political and cultural trend and so is doing nothing to mobilize an effective political response. If history is any guide, if the Right ever does respond, it will be ineffectually —too little too late—and all that will remain is to write the think pieces lamenting how unfair it all is.
Failure to act now promises dire consequences: the nullification of a key success of the Trump Administration—confirming life-tenured, rule-of-law, textualist-originalist jurists to the federal judiciary—and the further erosion of the integrity of our constitutional republic.
At the behest of their radical base, which is deeply disillusioned with Article III of the Constitution now that the courts are no longer reliable agents of History, many Democratic presidential candidates have offered various plans to “fix” the Supreme Court, and sundry pundits and intellectuals regularly concern-troll about the court’s legitimacy.
Here’s what is really going on: This is a political hatchet job to delegitimize the federal courts because they are not all-but-guaranteed to ratify the radical agenda of the progressive, social-justice Left: green fanaticism, Marxist deconstructionism (of late, that of sex and gender), multiculturalism, anti-Americanism through political correctness and social media-sponsored censorship, and socialism.
But the problem is not that politicians, pundits, and parts of the broader public are attacking the courts politically in an attempt to steer their rulings in a direction more palatable to their broader agenda; ’twas ever thus. The problem is the Right is sitting on its hands, apparently unaware that the progressives’ ferocious assault demands a response.
The courts are inescapably subject to politics because they are, by design, subject to the political branches—“advice and consent” on the front end and (theoretically) impeachment on the back end. And the members of those political branches, in turn, are accountable, ultimately, to the sovereign American people—from whom all legitimate government must derive its authority.
A few examples will suffice to show that the judiciary is not some pure haven of legal analysis and that judicial politics has been part of American political life since the Founding:
- Congress has twice in our history passed jurisdiction-stripping legislation in response to judicial decisions that it disfavored: one revoking the Supreme Court’s appellate review of a habeas corpus decision in the aftermath of the Civil War (Ex parte McArdle) and a second restricting the power of inferior federal courts to issue injunctions in labor disputes (Lauf v. E.G. Shinner & Co.);
- After Marbury v. Madison, the Jeffersonian Democratic-Republicans enacted legislation that prevented the Supreme Court from meeting for over a year and abolished the nationwide circuit court system set up by the Federalists during their last days in office (thus throwing Federalist-appointed judges out of office)—and the Supreme Court upheld that latter piece of legislation, even though it resulted in life-tenured judges’ losing their seats;
- After the Supreme Court handed down its decision in McCulloch v. Maryland, Chief Justice John Marshall anonymously responded via out-of-court newspaper articles to the pointed, ideological attacks of two anonymous state-court judges, who had penned their own extrajudicial writings;
- Part of the 1860 presidential campaign featured attacks on the Supreme Court (which had issued its disgraceful Dred Scott decision in 1857), and after Abraham Lincoln’s election, leading papers such as the Chicago Tribune and the New York Times supported plans to limit the independence of the judiciary;
- “Impeach Earl Warren” billboards dotted the landscape in the 1950s and ’60s in an attempt to pressure the Warren Court to back away from its nonoriginalist judicial activism, and, arguably, Franklin D. Roosevelt’s threatened 1937 court-packing plan was successful in pressuring the Supreme Court to lay supine before the implementation of the New Deal.
What we’re seeing from Democrats nowadays is just more of the same: a series of political attacks that must be met with a political response.
But that response will have to come from the political branches and right-leaning media, as well as those who generally support President Trump’s judicial nominees, because we cannot expect judges in today’s system to defend themselves. What Marshall did post-McCulloch was a highly unusual maneuver from an exceptionally gifted jurist and political operative, during a different era in history.
As Hamilton wrote in Federalist 78, “The judiciary . . . has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever.” Judges rely on public support and the protection of the political branches for their power and legitimacy; if we do nothing to defend Article III against this barrage, its power will be fatally undermined—and we will all be the worse for it.
The Founders were originalists, but the Progressive Era fomented a jurisprudential revolt in constitutional interpretation, a revolt that wrongly spurned the role of originalism, textualism, popular sovereignty, and the natural law in the interpretive enterprise. The courts as President Trump and Senate Republicans are molding them are good and worth defending to the hilt, and the Right should not be afraid to engage in full-throated political defense of them, even in the face of a Left that, in its delusional way of thinking, posits that the judiciary is its own exclusive property.
We’ve known for decades now that as the courts go, so goes the country—for better and for worse. It’s time we start acting like it.
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