Setting aside for the moment the unbelievably dispiriting saga of the Supreme Court nominationof Brett Kavanaugh, which is clearly a political and cultural inflection point that will keep commentators scribbling for decades to come, it seems apparent that our entire federal system of jurisprudence is suffering from a crisis of legitimacy that is perhaps unprecedented in recent memory.
Some of the problems are self-inflicted wounds that are the result of obvious miscarriages of justice that have wronged the innocent and released the guilty. Some issues have arisen from moving far away from simply applying or interpreting laws and becoming super-legislators whose individual judgments supersede those of duly-elected representatives. Other difficulties facing our federal courts are the inevitable outcome of our nation’s ever widening cultural and moral divisions—every ruling now produces an army of the disgruntled.
The law and our federal courts have, of course, always been imperfect tools in our eternal quest for justice on earth because the humans who write and apply our laws are themselves imperfect creatures who are subject to the same stupidity and shortsightedness as us all. However, the hope was that rigorous training of both lawyers and judges in evidentiary proceedings conducted under rules established by both precedents and common sense would be sufficient to reduce the opportunities for either fear or favor to influence the rulings of our federal courts. This has not always worked, but additional procedures for appeals are available, and a trip up the marble steps of the Supreme Court has always been the final leg of the journey for those seeking justice.
It is important to remember that, even when the wheels of justice turned slowly, the general perception was that the federal courts were a reliable bulwark against destructive partisan passions. Although we understood that justice was sometimes elusive, judges and the courts were still held in high regard. Despite the sometimes reasonable perception that true justice often seemed reserved for rich, white males, Americans had a sense that the federal courts were capable of hearing the pleas of those who felt historically disenfranchised and responding—if belatedly—to their needs, and this served to burnish the reputation of our federal courts in spite of all their missteps on the path to modernity. Consequently, generations of idealists worked to make improvements to both the operations and outcomes of our federal court system, which enabled a broader spectrum of American society to enjoy the benefits of living in a nation of laws. If small town local justice sometimes seemed small-minded, the federal courts many times provided the necessary broad corrections that could later be applied nationally through the precedents set by their rulings.
How far away this all seems today….
Perhaps the most pressing problem now facing the federal judiciary is one for which they have only themselves to blame: Abandoning the role of arbiter and assuming the mantle of advocacy has turned judges into yet another subset of political hacks within a system rife with political hacks. Outsized egos and a lack of respect for the dire consequences of judicial activism have pushed the federal courts further and further beyond their constitutional mandate, which is sadly understandable if you consider the foibles of human nature.
As much fun as it might be to be a “rock star judge” who finds new and inventive ways to circumvent judicial limitations and seize the powers delegated to the legislative and executive branches of government under the Constitution, the price to pay is the destructive surrender of all-important perceptions of restraint and impartiality. The unsurprising result has been that federal judges are now subjected to the same rough and tumble scrutiny as those who must regularly win re-election to their offices by presenting their partisan credentials to voters—welcome to the jungle, Your Honor.
As the federal courts have come more and more to both reflect and reinforce the partisan splits in our nation by seeking to circumscribe—or outright negate—the laws and regulations approved by the President and Congress, they have waded deeper and deeper into stormy political and moral waters they cannot possibly navigate without eventually drowning. Moreover, by making their own partisan agendas ever more apparent through their frequent speeches and voluminous writings, judges serving at the federal level are discarding all remaining pretense of objectivity in favor of social engineering on a scale that would both astonish and alarm their more circumspect predecessors on the bench.
The sadly predictable outcome is never ending sniping and frighteningly vicious confirmation hearings that are erasing whatever tattered prestige our highest level of courts still retain.
We may not at this late date be able to turn back the clock because our nation’s elite law schools have themselves become the training grounds for a radical judicial philosophy that—terrifyingly enough—believes judges are wiser stewards of our nation than those whom we elect to represent us. The outright disrespect for our democratic processes that we today so often see manifested in the rulings of our federal courts is an insult to the genius of our nation’s political system, which is still the wonder of the world despite its human flaws.
Therefore, having founded a nation by rejecting the divine rights of kings, it might just be the case that we will renew our nation’s commitment to democracy—however maddening and messy as the will of the people might sometimes be—by opposing the “divine rights” that have been assumed by judges who believe it is their prerogative to strike down legislation, oppose the President, and impose whatever mandates they see fit upon a captive America with a single court order.
The battle has been joined, and those on both sides of this issue clearly understand what is at stake. Whatever the outcome might be, we can be certain that our perceptions of the federal court system and its role in relation to the other two branches of our national government are about to undergo a profound shift—and the outcome will either begin to heal or further divide our already troubled nation.