Terry H. Schwadron
March 21, 2024
Maybe there’s something in the water at our courts that is making every day a chilling adventure over whether we’ve just thrown common sense out the ivory-tower window.
From Supreme Court decisions issued without explanation to the successful campaign by Donald Trump to build in multiple delays through endless appeals of any Donald Trump case to constant legal threats against individual rights, we’re witnessing the ultimate blossoming of a society that sues, prosecutes, counter-sues, and uses legal procedural tools as if there is a fire sale on legal challenges.
Depending on your point of view, you probably could blame the increasingly extreme turn in our courts to heightened political appointments of our judges, or discrimination in whom we choose to prosecute, or some perceived rise in crime for the push and pull over whether we simply want to throw more people in jail. They’re all factors, of course, along with a distinct odor of political partisanship in our court practices. But, in the end, it seems as if the desire to win — and to crush our opponents — has simply oozed from political campaign stops to the courtroom.
Every decision now at every level of court, whether civil or criminal, whether procedural or substantive, is being constantly reviewed for whom it helps rather than on whether it is providing justice.
What we seem to have achieved is a new unsteady state for justice that continuously makes us uneasy.
Growing Recognition Something’s Wrong
It’s become evident enough that former Supreme Court Justice Stephen Breyer is out with a book and interviews warning that the top court is headed in the wrong direction and losing public trust. Basically, he argues against the “textualism” adopted mostly by conservatives to look at law literally and now in view of current conditions or effects.
Supreme Court justices Sonia Sotomayor and Amy Coney Barrett are out on the hustings to tell people they really do get along despite differences in rulings. The U.S. Judicial Conference issues warnings this week against rising “judge-shopping” incidents, and nightly cable television has become a constant law school 101 course in hopes of explaining how today’s ruling makes any sense.
What has become obvious is that we are in a wrenching public fight over whether Equality Before the Law means anything, as judges and courts lean over backwards or not to treat Trump’s cases with special handling — even as the very same Trump defenders fill campaign airwaves with calls for prosecutors to abandon legal restraints on bail for others charged with crimes.
Or they attack Fulton County District Attorney Fani Willis not over her law prowess or cases against Trump, but over a love affair that never showed how that might bias her prosecution efforts but trapping that trial judge in a public relations war rather than understandable legal argument.
We are seeing courts emerge as the alternative to Congressional gridlock on issues like abortion and immigration or the power (and now eligibility and immunity) of the presidency towards other branches of government. We’re watching judges insist that they know more about medical research techniques than the FDA, or more about pollution science than the EPA, and so on down the administrative line.
What has become accepted perception is that it is not law itself, but what a majority of appointed judges in a courtroom say is law that matters. We have sidled substantially toward seeing our courts as mini legislatures with liberal and conservative wings.
Poorly Explained Decisions, and Bad Effects
Often, the rulings seem deliberately obscure or limited to a fine legal technicality, only to discover that the practical effects are vast — as we saw in the abortion and IVF rulings.
This week we saw an unexplained Supreme Court ruling on whether Texas can start running its own immigration rules greenlighted only to find out hours later that the appeals court judges to whom it had returned the case now were saying Texas cannot proceed. Just for nothing, Mexico chimed in that it would not accept Texas state deportees.
As contradictory rulings over immigration in the last few years show, it’s not about law, it’s about who’s saying it is law.
Listening to Supreme Court arguments this week about the role of government with social media companies over issues like public health information was a walk in the jungle of free speech interpretations that were across the board, and it quickly was clear that political partisanship was equal to any legal interpretations in an area where there is little precedent.
The outlandish suggestions from Judge Aileen Cannon in demanding that lawyers address jury instructions for the Trump classified documents case long before she has even set the trial date — and insists on questions that clearly tend to absolve Trump — smacks of partisan refereeing, not law. It has become part of a pattern for this judge, who already has been reversed twice by a very conservative appeals court.
Even the uproar about Trump’s difficulties in finding bond money to appeal the outcome of his New York State court fraud findings is based on public posturing on “election interference” rather than on any cited law. The totals that Trump must post by next week are based on the value of counts he lost in the case, not on some judicially imposed “punishment,” and if he were anyone else, he would be forced to pay up or shut up rather than beg for special treatment.
Trump’s campaign threats to throw critics in jail for opposing or investigating his behaviors, or to sue ABC News or The New York Times for defamation in pointing out fact in his legal standing, is plain bullying via the courtroom.
Politics Augments the Weirdness
No sooner do we get a court ruling than we get the boomerang effect of amping the results with Congressional hearings, as with the recent decision by Special Counsel Robert Hur, a Republican, in deciding there would be no prosecution of President Joe Biden over classified documents,
Despite the finding, House Republicans one by one substituted their own judgment for his in a public session, to insist that Hur should have brought charges, and Democrats on that same Judiciary Committee assailed Hur for adding legally gratuitous observations about Biden’s age and memory.
From the outset, we set out to create courtrooms a home to fair umpires. Somewhere along the line, we have lost that thread. It seems far easier to gauge outcome of legal challenges based on who the judge will be. That’s a loss for trust, for fairness, and for equality before the law and itself is spurring more lawsuits and appeals.
Maybe this election should be about judicial appointments since that’s where the decisions about being made.
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