Judicial Tyranny And The Atomized Society

Related posts:
The Right Wing Plan To Rig SCOTUS
SCOTUS Is Changing The Definition Of American Citizenship
Alito’s Horrifying Opinion

The arrogance of the judiciary has been rubbed in our faces for several years. SCOTUS members have noticed that people are demanding accountability, and they don’t like it. One member, John Roberts, scolded us:

“The court has always decided controversial cases and decisions always have been subject to intense criticism and that is entirely appropriate,” Roberts told a gathering of judges and lawyers in Colorado Springs. But he said that disagreement with the court’s role of deciding what the law is has transformed into criticism of its legitimacy.

“You don’t want the political branches telling you what the law is. And you don’t want public opinion to be the guide of what the appropriate decision is,” said Roberts, who added, to laughter, “Yes, all of our opinions are open to criticism. In fact, our members do a great job of criticizing some opinions from time to time. But simply because people disagree with an opinion is not a basis for criticizing the legitimacy of the court.”

Amy Coney Barrett, speaking at the Mitch McConnell Center at the University of Louisville, demanded that we believe she’s just a simple vessel for determination of the one true law:

“My goal today is to convince you that this court is not comprised of a bunch of partisan hacks,” the conservative Barrett said, according to the Louisville Courier Journal. She said the high court is defined by “judicial philosophies” instead of personal political views.

“Judicial philosophies are not the same as political parties,” Barrett said.

These two, like other members of the Court, want you to believe that they are not political, certainly not politicians. It’s unfunny hypocrisy that Roberts has pursued a political vendetta against the Voting Rights Act his entire career. They all got their positions through politics, and they all have strongly held ideological views. If Barrett’s “judicial philosophy” isn’t political, why do all her decisions enforce the positions of the Republican Party, its media and donor arms, its think tanks and foundations, and its armed brownshirts?

Barrett asks you to examine her opinions to see if they sound result-driven. This is from a speech at the Ronald Reagan Library.

“Does (the decision) read like something that was purely results driven and designed to impose the policy preferences of the majority, or does this read like it actually is an honest effort and persuasive effort, even if one you ultimately don’t agree with, to determine what the Constitution and precedent requires?” she asked.

Well, I’ve read Dobbs. It’s political hackery. Sure, you can find defenders, like Barrett’s good buddy Richard Garnett, a Notre Dame law professor. But Dobbs has been eviscerated by historians, legal scholars, practicing lawyers, and lay readers. Alito calls the reasoning of Roe v. Wade was egregiously wrong from the start, and says it’s reasoning is exceptionally weak, as if somehow that makes it different from any other decision he doesn’t like. The tone of Dobbs is sneering, condescending, and ridiculous. The opinion ignores the potential impact on the lives and health of women. Only people who like the result will be impressed. Everyone else sees that it solely based on the fact that they have 5 votes to strip our Constitutional rights.

The arrogance of Alito and the other Republican appointees has infected many lower court judges. Let’s look at a couple of cases.

First, in a case in Fort Worth TX, 26 Navy Seals refused to get the Covid vaccine in violation of orders, claiming it was a violation of their religion. Reed O’Connor, a federal district judge. granted a preliminary injunction barring the Navy from enforcing its rule requiring vaccination nationwide, and barring the Navy from taking any action against the plaintiffs. For example, the Navy couldn’t reassign the Seals or take any action to protect other sailors. This was too much for Brett Kavanaugh and John Roberts, who joined the three Democratic appointees in staying the injunction. The injunction was in effect for two months.

Sam Alito, Clarence Thomas and Neal Gorsuch dissented. They think religious freedom, as they construe it, is a higher value than Art. 2 of the Constitution, which provides that the President is the Commander in Chief. The dissenters write “These individuals appear to have been treated shabbily by the Navy, and the Court brushes all that aside. I would not do so, and I therefore dissent.” The dissenters say that the Navy has to find some accommodation for any alleged religious objections at every stage of litigation. The bare assertion of religious claims overrides Art. 2.

Here’s a fun fact about the case:

Ms. Prelogar [the US Solicitor General] wrote that the injunction had already forced the Navy, against its military judgment, to send one of the plaintiffs to Hawaii for submarine duty. In general, she wrote, “Navy personnel routinely operate for extended periods of time in confined spaces that are ripe breeding grounds for respiratory illnesses, where mitigation measures such as distancing are impractical or impossible.”

Another fun fact: in a similar case in the Middle District of Florida, another District Judge, Steven Merryday, granted a preliminary injusntion to a Navy captain who commanded a ship, but refused to get the vaccine on religious grounds. The Navy refused to deploy the ship.

The judge in the first case, Reed O’Connor, in a separate case, ruled that ACA insurance plans didn’t have to cover PrEP, a group of drugs used to prevent HIV infections, because some guy doesn’t want to support a plan that he’s just sure encourages homosexuality which he says is against his religion. This decision is ridiculous. Drugs don’t encourage homosexuality. But Reed O’Connor doesn’t care. Religious claims must be upheld at every stage.

O’Connor also declared that the Congressional system for determining what preventive care must be covered by ACA plans is unconstitutional as a violation of the appointments clause. That’s laughable. We have all kinds of boards to evaluate aspects of health care and other government functions. It takes experts to find objective experts for such administrative tasks. But O’Connor knows best how to anage health care. He’s the guy who declared the ACA unconstitutional.

Other judges have issued nationwide ingjunctions against actions of Congress and the Executive branches with varying degrees of legal merit. For example, a judge in Hawaii enjoined enforcement of the travel ban of the previous administration. Eventually it was upheld in part and stayed in part. Here’s a short neutral discussion.

Now consider the scribblings of Aileen Cannon in the Mar-a-Lago search warrant matter. I have not seen a single reputable lawyer defend her actions. I don’t have words for her absurd interference with the purely executive function of investigating potential crimes.

These cases show a fundamental change in the role of the judiciary in our crumpling government. Courts at all levels now feel free to overturn the decisions of Congress and the Executive Branches for any reason at any stage of the proceedings on any grounds.

Everyone knows this and uses it to stop everything they don’t like. For example, the SEC is making a rule requiring reporting companies to disclose information about their impact on climate. As soon as the rules go into effect the climate-deniers will file suit, and no doubt will find a compliant judge to issue a preliminary injunction which will delay the rules indefinitely. The Guardian explains their legal argument:

Some opponents claim that requiring companies to publish climate-related information infringes on their right to free speech. Others (often the same ones) say that the rule exceeds the SEC’s legal authority.

By accepting facially absurd arguments, and then through years of delay, courts protect the status quo at the expense of democracy. And if the lower courts won’t, you can bet the totally non-political SCOTUS will.

The Atomized Society

Neoliberalism teaches that there is no such thing as society. There is only a group of solipsistic atomized individuals seeking their personal satisfaction without regard to anyone else. It’s a perfect description of the plaintiffs in these cases. The Seals don’t want to get vaccinated, but they want all the benefits of being in the Navy, and claim to be willing to follow all other orders. The anti-gay guy who doesn’t want to participate in ACA plans thinks he should get all the other benefits of insurance plans, but that no one should get any benefit he doesn’t like. The anti-abortion zealots put their moralizing claims over the will of the majority, as polls show repeatedly. Pig-rich corporations think they shouldn’t be subject to democratic rules they don’t like, but want the benefits of operating here.

This is anti-democratic, yes, but it’s also a sign of a failing nation. It is the ultimate triumph of neoliberalism: me first, me only, enforced by the judicial power of the state.

29 replies
    • Tracy Lynn says:

      I rarely read Slate — thank you for posting this link, Ed Walker. I never would have seen it otherwise. I’m not sure I totally buy the author’s conclusion that Roberts knows we are right on all this. I suspect he simply doesn’t care.

  1. Joe Stewart says:

    I recently read, How Rights Went Wrong, and now think the author is correct: that our seeking “absolute” rights is simply wrong. We should instead look at the facts and circumstances of each case and then negotiate among the relevant rights. It’s a very different way of looking at rights, for sure. The Navy vaccination case, for example, clearly needs to weigh national defense and an individual’s right to worship – not grant that individual’s worship and leave the rest of us without a warship to protect us.

    • Bruce Olsen says:

      I’m not so sure there needs to be a case-by-case decision.
      My best analogy is doctors who claim they can’t perform treatment X (generally abortion, but it could be treating a non-CIS person for anything etc). The chain of reasoning is pretty simple:

      1. The profession states that treatment X is an integral part of medical practice.
      2. If you refuse to perform treatment X, you can’t be a doctor. You can be something else, but you can’t be part of the real, licensed profession.

      It’s permitting case-by-case decisions that has led to the problem.

      • TXphysicist says:

        Speaking of which, the case-by-case abortion exceptions that some GOP pols are claiming to advocate for is just another bad faith argument.

        On top of further burdening the already-overstretched judiciary, am I supposed to believe that the litigation regarding rape, incest, or medical emergency will be so speedy that the pregnant girl, woman, or person will be able to have a timely abortion that they’d otherwise be criminalized for?? And screw HIPAA, let’s get these misfortunes on the public docket!

        This is all so pathetic. The theocrat Hwhite nationalists are given free rein precisely because the wealthy are not impacted (oh, hunny, the French can abort like you wouldn’t believeee!), so long as the existing wealth and power structures are preserved or perpetuated even further.

        And it’s not just the judiciary, obviously. As Pelosi tees up a vote in the House to possibly ban Congress from trading stocks, I see exactly three options: 1) It doesn’t pass in the House, 2) It doesn’t pass in the Senate, or 3) It passes both, for the sake of appearances, but is completely toothless and/or unenforceable due to technicalities/exceptions intentionally sprinkled into the bill.

        Our existing political landscape forces progressives to ally with corporatist dems to tackle today’s most pressing issues, but surely the establishment “left” (American left) knows that the progressives will likely turn on them, out of principle, should the GOP somehow magically dissolve. What a solid alliance that makes for.

        For Congress: We should massively expand the House. We should abolish or reform the Senate. We should use algorithms to prevent gerrymandering (like capping the ratio of perimeter to area, for districting, for starters). We should implement ranked choice voting (Palin just found out that it’s, erm, bad for her. LOL).

        For the executive: We should get rid of the electoral college, and re-impose/add more limits on executive power.

        But I have absolutely no idea what to do about the judiciary. Not one single objectively more representative change listed above will be allowed by these courts, probably for decades, even if you could get something through Congress and the executive.

        And the idea that we’re even remotely capable of having something like a productive Constitutional Convention right now is, quite frankly, hilarious. Ha ha.

        If anybody has any ideas besides begrudgingly continuing to vote democrat, I’m all eyes.

  2. DrDoom says:

    Ed Walker is channeling Anatole France, who noted in the 19th century that:
    “La majestueuse égalité des lois, qui interdit au riche comme au pauvre de coucher sous les ponts, de mendier dans les rues et de voler du pain.”
    “The law, in its majestic equality, forbids both the rich and the poor to sleep under bridges, to beg in the streets, and to steal bread.”
    From my non-lawyer perspective, the law exists to protect property rights and the current distribution of wealth while simultaneously convincing society’s have-nots that these rules are fair. There has always been a pendulum swinging between greater deference to wealth and greater deference to fairness.

    Current judicial activism abandons the notion that the appropriate balance point is a political question to be settled by elections and legislation, and instead empowers the wealthy and powerful to impose their preferences on the rest of us. As in the case of the Navy Seals, the rich and powerful need not be parties to the suit themselves.

    I see this as literally a dangerous situation. If the law loses legitimacy in the eyes of the public then there is no incentive to work in favor of stabilizing and protecting it from abuse. The rich and powerful have no incentive to act responsibly and demonstrate respect for others. There is no incentive for working for reform within the system, rather than resorting to revolution.

    IMO, right wing judicial activism is the predictable consequence of pursuing Grover Norquist’s philosophy of government. What follows if government becomes small enough to drown in a bathtub? The abuses Ed Walker laid out so clearly in this post, and the prospect that in the future we will all be forced to bend the knee to our corporate overlords.

    • TXphysicist says:

      Your’s and Ed’s perspectives are the worldview that I’ve gradually arrived at as well, but only after carving out a LOT of time in my personal life to repeatedly test the ideological consistency of differing perspectives/models against both historical and current events. Other than the very few students of history and philosophy, most people don’t have that luxury. The complexities of modern life and wage slavery prevent folks from reaching this understanding before they’re somewhere well-past retirement. Which, of course, plays right into the hands of Capital.

      We’re almost not even allowed to admit that this is a fairly Marxist framing, the word has been so thoroughly demonized. LOL but I do enjoy all the right-wingers (and many lefties) shouting “That’s socialist!! That’s Marxist!!”, despite having no idea what the words mean, and as though labeling an ideology (rightly or wrongly) is sufficient to debunk it, before returning to their comfort blanket thoughts, which btw are the biggest crock of cognitive dissonances baked into an ideology possibly ever. Pavlovian af.

      The only thing I wanna warn you about is that “the future”? The future is now. We are bending both knees, watching as the people helping to hasten a potential global ecosystem collapse celebrate themselves with a dick-rocket spaceflight. The widening gulf between productivity and the average and minimum wage requires a fascist revolution to sustain and perpetuate. So we’re gettin’ it.

      What’s crazy is that the erosion of the rule of law from events like Watergate and *gestures to every other post on this website* seems to at least partially reinforce the hyper-individualist, “screw yours, I got mine” mentality that renders us incapable of the collective action required to reign in the wealthy class. It is a nasty feedback loop.

      At this point, I think it’s almost impossible that this resolves without a bloody class warfare revolution. I’m not sure how much longer the elites can keep us pitted against one another using racism, fear-mongering, religion, and political ideology, but it’s probably quite a bit longer, judging by the current momentum. I hope we can get to the class revolution before a national or global catastrophe. How naive I was, in the days after J6, to think a palace coup attempt would be enough to spark some actual change.

      Ten years ago, before I really put a lot of these concepts together, I used to think resolving the Fermi paradox with the theory of a “Great Filter” was a silly idea. Those were the good ol’ days :(.

      Anyway, I’m glad I found this place. Thanks for the post, Ed!!

      • Ed Walker says:

        When I was working I read a lot more widely than I do now, but sporadically when time and energy permitted. Since I retired some time ago, my reading has been more focused. There is a wealth of knowledge available, but sadly few have the time, energy and focus to read.

        I understand how hard it is to break away from the standard capitalist worldview, especially when your income depends on your ability to use it for yourself and your family.

        It’s really hard for most people to perceive how dangerous things are right now. The pressure of making a living, the complexity and scariness of the dangers, the dissembling of the media and other capitalist forces conspire against knowledge.

        I think thoughtful people have good ideas to solve or at least ameliorate our problems. But a very small number of very rich people and their enablers make it impossible.

        I often think of the book The Ministry For The Future, by Kim Stanley Robinson.

        • TXphysicist says:

          Agree, Ed, and thanks. I’ll check out that book. I’m probably finally ready for Picketty, too. Hahah, totally different directions (and levels of literary dryness), looks like.

          What do you think about stakeholder capitalism? It’s been difficult for me to find many good resources about it. I suspect the waters may have been intentionally muddied, at least somewhat.

          I’m also worried that any model requiring economic growth is unsustainable, given the existing 8 billion humans and the general requirement of population growth to fuel economic growth.

          Thanks again for indulging me :).

      • DrDoom says:

        Few talk about the tensions WITHIN capitalism. Markets, as conceived by Adam Smith, are populated by large numbers of buyers and sellers, each holding roughly equivalent power. This is a highly democratic state of affairs. Different levels of success within a capitalist framework leads to concentration of market power, substitution of rent-seeking for profit-seeking, and inequality. Successful capitalists driven by economic self-interest adopt anti-democratic and anti-government views. A successful liberal (19th century sense) government requires sufficient power to prevent the critical degree of wealth concentration from occurring, thereby protecting both markets and democracy. TXphysicist, there is IMO a political critical point at which there is a phase transition between democracy and autocracy. USA is very close to that critical point, as are many western countries. I agree with you that violent revolution is not beyond imagining. Ed Walker, thanks for the book recommendation. I’m not familiar with it but will add it to my list.

        • TXphysicist says:

          Absolutely, the tug-of-war between gov’t and business is a well established and generally healthy dynamic, but yes, like you’ve said, we’re clearly in the process of business capturing government by using autocratic appeals and methods. “Phase transition” reflects the abruptness fairly well, and I appreciate the verbiage, of course :).

          The rest is semi-rant, skip if ya wanna:

          We all have that one anarcho-libertarian friend, right? Mine’s said, “Abolish gov’t! You can just vote with your dollar”, and then manages to explain away the obvious issue that not everyone has the same amount of dollars. It’s fine, “because meritocracy”, or something. It’s always fun to lead those types down the logical path of “Well, before we abolish our government, maybe we’ll make sure everyone starts out with the same amount of money, by using the government; The government we don’t need, because it’s good for nothing. …hey, wait a minute!”. Or, the notion that if you don’t abolish every government or military in the world simultaneously (good luck brokering and enforcing that agreement), Putin has just proven that “great powers” geopolitical warfare is still very much a thing, and will happily step in to seize your one-week libertarian utopia.

          LOL and about a decade ago, my friend was like “Hey have you ever heard of the intellectual dark web??”, which is a network of libertarian-adjacent folks that have since become full-time obsessed with regulating the genitalia of distant strangers using the powers of the state. But none of that matters. Their religion is the worship of profit, above all else, and the economists and businessmen pursuing it. I mean, one of the reasons we have government is to protect ourselves from sociopaths like them. It’s just not really working anymore. Thanks, Citizens United (among other travesties).

          The technocrat argument pops up fairly often, too. “Wealth inequality enables businesses to take economic risks to develop new technologies that they would otherwise be unable to pursue. Yes, people are starving right now, but those technologies will prevent comparably more starvation in the future: A net benefit.” Almost always purely speculative, and, oddly enough, not quite the argument made people currently starving. This is where Ben Shapiro steps in to argue that empathy is actually a weakness, because it can derail the ice-cold utilitarian logic required to make hard decisions. Here’s an idea: If you’re consciously quashing empathy, or incapable of it all together? Stay the hell away from me, and stay the hell away from policy-making.

          Funniest technocrat take of late goes to Jared Kushner, who told an interviewer that he’s been exercising more since leaving the White House, because he’s probably going to live forever. Again, the mindset requires a total ignorance of how long people have been thinking the exact same thing, an ignorance of medical science, and most importantly, a disregard of how environmentally unsustainable it would be if large numbers of people extended their lifespans indefinitely. Ah, but you see, in his mind, Jared deserves it. He has earned it! How weird is it that wealth *is* evidence of morality and intellect to the people born wealthy?! Must be a pure coincidence.

          If Theranos wasn’t enough, and you wanted more evidence of how out-of-touch the venture capitalist (VC) sector of the world is with reality? Let’s go to one of my sectors of physics/engineering: SpinLaunch. A company planning to throw payloads into space after spinning them up to Mach 6, inside of a vacuum chamber, with 10,000 g’s of static centripetal acceleration load at the end of the spinning lever arm on the payload. I, and many others, have come up with about 100 reasons why this will literally NEVER work. They’re funded with a couple hundo million $’s so far, but the Yaney brothers, the founders, are already facing several lawsuits for other fraudulences. And none of that matters to the VC community. All you need are buzzwords, white males, and sleek power point presentations, I guess.

          Anyway, that’s all for now, sorry. I’m so, so tired of debunking these people’s hyper-capitalist fetishizations and it never mattering, because it was actually never really about logical integrity, or making the world a better place. Again, it was always about preserving the white cis-hetero man’s grip on wealth and power using pseudo-intellectual rationalizations. I get to say that, because I am one. Self-policing.

          • TXphysicist says:

            To very much clarify something very important; Men like me are NOT the only ones who should be permitted or encouraged to criticize men like me. It’s the opposite.

          • DrDoom says:

            Language was chosen with you in mind. As I’ve mentioned in another thread, my wife is a physicist, so I know the talk. Reliance on utilitarianism is a fundamental weakness of pretty much all economic modeling IMO, because “goods” and “prices” don’t even remotely approach the assumptions about their mathematical representations. FWIW, it was obvious from the get-go that Theranos was a scam. Its investor pool was not the usual VC crowd, but a bunch of politically connected, rich, old, RW dudes. Your point about the usual VC crowd is correct, though, which is populated in large part by jerks who overestimate their brains and underestimate their luck. They like Libertarianism because it affords them illusory occupation of the moral high ground.

            • TXphysicist says:

              Thanks :). I’ll be quicker this time.

              The non-linearities introduced by the coupling of economics to human perception is one of biggest reasons why I chill with ensembles of elementary particles and fields, professionally. My particular research corner almost always involves dealing with non-linear maths, but psych- or sociology-related non-linear stuff is… it’s too much. People be craycray.

              I guess I really like how non-political my work is. Oops! No, sorry, it’s pretty political: https://i.imgur.com/wQ1zXuV.png

              Maybe I hate money? No, I’m trying to make $300 by winning my fantasy football league this year (true clause), so that can’t be it (false clause). (this is my favorite paragraph for libertarians)


              Sorry ’bout all that, my life is one long, bombing stand-up. Can’t stop won’t stop

      • AlaskaReader says:

        Are you saying language stripping the Court of jurisdiction isn’t possible, despite such language being employed recently, shall we say ‘successfully’, as well as in the past?

        The present court does seem to ignore precedent, but this seems a heavy lift on top of their other activism.

        • bmaz says:

          Ryan Cooper is a friend, and a really smart and decent chap. But, no, I do not want, nor think proper, for the idiots in Congress to be micromanaging law. You want Jim Jordan in charge of the law?

          • Frank Anon says:

            It wouldn’t be just Jim Jordan’s choice to make, and if there were a President, Senate and House in the hands of one party, it could be reasonably said that it was the will of the voters. I would expect a Democratic trifecta in 2023 – should it occur – to pass a national Roe law limiting Supreme Court review. And if the idiots in congress don’t do this, the idiots in the state capitals will

    • Ed Walker says:

      It’s just one of several things Congress and the President could do. But only if they want to protect their power from a bunch of judicial renegades.

    • Sans Serf says:

      I have been wondering recently if this is the solution to a judiciary that continues to run roughshod over the will of the legislative and executive. If congress passes a law and at the end includes an article that says “this act is not subject to review by the judiciary” then what can the courts do about it?

      If the courts try to rule the law unconstitutional, then congress/executive can just say “sorry, but the law is unreviewable.” and just continue on with business and ignore the protests of some lifetime appointed political hacks.

      We may not like this tactic being used by legislative hacks like Jim Jordan, but at least we get to vote for the members of the legislative branch and the leader of the executive.

  3. Silly but True says:

    Roberts is a graduate of the Comey School
    of Winning Friends and Influencing People: he thinks he’s doing a good, fair job when everyone of every side hates him.

    He doesn’t realize that another reason could be that he’s a political and judicial hack who messes up every case he’s ever touched.

  4. The Devil's Advocate says:

    Religion > Law, so sayeth the Supremes.

    As a worshipper of Satan, I look forward to all the laws I will get to ignore while excercising *my* religious beliefs.

  5. Bill Crowder says:

    I cannot agree with you more.

    Among other things, the gutting of RESPA for example, over the past 45 years, I have watched the Supremes and some of the Appellate Courts kill off class actions using death by 1,000 cuts. Class actions are the best, if not only, feasible route to litigate consumer fraud. You have to be nuts to bring a case costing $100,000 to recover $500.

    It’s another form of lawlessness that has led to where we now are: concentration of wealth in the hands of maybe 1%.

  6. Jeffrey Gallup says:

    I found interesting Kavanaugh’s concurrence in the Dobbs case. As I read the subtext, he was screaming “I am not crazy! I understand people’s concerns about abolishing abortions. I know there is a real world. But if we only send the issue back to the states,the Court will be done with this and all will be well.” But of course he went along with the majority, and all is not well.

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