Faith in the courts is on life support in America.
On Thursday we heard Department of Justice officials talking about election conspiracies debunked in courts across the country — rulings that a substantial portion of our citizenry on the right of the political spectrum rejects.
The same day the U.S. Supreme Court issued rulings that undermined gun control rights and Miranda rights, enraging activists on the left.
And on Friday the most political decision in the history of our country, Dobbs v. Jackson, overruled Roe v. Wade.
For decades belief in the legislative and executive branches of government has seen faith in their ability to govern erode. Bitter partisanship and political campaigns have taken a toll on America and its belief in its government.
But the judiciary long stood as the one branch above politics.
Throughout the history of our country the courts have enjoyed a reverence reserved for no other subset of government. They are the arbiters of truth, the hallowed halls of justice, a blindfolded statue holding scales and a sword.
Even their setting and dress conveyed a separateness from the ugly politics that other branches wallow through. From the dais to the black robe to the crest behind the bench.
Joseph Campbell, the preeminent comparative mythology scholar, noted that when a “judge walks into the room, and everybody stands up, you’re not standing up to that guy, you’re standing up to the robe that he’s wearing and the role that he’s going to play. What makes him worthy of that role is his integrity, as a representative of the principles of that role, and not some group of prejudices of his own.”
But that is exactly where we find ourselves now.
Americans from both sides of the political aisle believe judges now walk into courtrooms with preconceived outcomes. They do believe that a fair and just trial is not attainable. They think that courts, particularly the highest appellate courts, contain nothing but political hacks insulated from elections and popular votes.
It is hard to blame them.
For decades Democrats and Republicans have used the courts as political punching bags. Republicans in particular have decried “activist judges” while simultaneously working to appoint their own across the country.
President Donald Trump nominated two-thirds as many judges in four years as either of his immediate predecessors in their eight-year terms. Trump appointed one less judge than Obama on the Court of Appeals and one more on the all-important Supreme Court. Of course, that one seat is where things really took off.
When Republicans in the U.S. Senate refused to set hearings, much less vote to confirm, Merrick Garland (now the U.S. Attorney General) to the Supreme Court many months ahead of a presidential election, they put the imprimatur of partisanship on the nomination process. They stamped it into steel when they reversed course to push Justice Amy Coney Barrett through just days before the next presidential election.
Unfortunately, judges seem to play right into the assumption. I have argued that judges must abide by Justice Antonin Scalia’s precept that “the judge who always likes the results he reaches is a bad judge.”
The decision of the current U.S. Supreme Court to overrule 50 years of precedent and strip away a constitutional right, for the first time in its history, smacks of nothing but politics. Whatever Justice Samuel Alito may write, this is not a situation akin to Brown v. Board of Education. Rather, it is the political end he has sought for decades.
Alito’s decision will have a significant and lasting impact on our democracy separate and apart from its effect on abortion laws.
America is likely to roil with political turmoil over the coming weeks, months, years and decades. Sadly, it seems that we will not have the unswaying pilings of the judiciary to keep us moored in the storm any longer.
Mario Nicolais is an attorney and columnist who writes on law enforcement, the legal system, health care and public policy. Follow him on Twitter: @MarioNicolaiEsq
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