One Small Individual Judge, One Very Large Country

 

The United States was never designed as a representative democracy, but in recent years, the nation choose to deviate further from that description. From the get-go, in a nation that, in 1789, was 94% agricultural, there was a severe rural mistrust of “city slickers.” Rural residents, spread far and wide by the realities of farmland, feared the voting ramifications of concentrations of large urban populations. They wanted to guarantee that their rural values would be preserved; they could not have envisioned a population reversal where “city slickers” overwhelmed the under 2% of Americans that remain farmers today.

The growth of cities began early. By 1820, it was already estimated that the US farm population had fallen to 72%, and by 1920 down to only 32%. Of the farmers that remain to this day, half or more of those live in the Midwest and about 30% in the South, the greatest concentration of red states and, with the exception of Florida and Texas, states with few or no large cities.

The anomaly of rural control is reinforced in that original form of government. Each state has two US Senators, regardless of population, and that Senate has adopted a filibuster rule that requires a 60% vote to bring most bills to a floor vote. We are the only purported “democracy” on earth where a simple majority of our federal legislature is unable to pass a bill. 30% of America elects 50% of the Senate. In recent years, using their red state majority, a nation where 90% of Americans live in cities, farm states still call the shots… and are working hard to disenfranchise urban voters. The facts are more detailed in my April 27th Democracy, Anocracy or Plutocracy? blog.

We are watching farm-state appointed judges autocratically making healthcare decisions without the slightest degree of medical expertise and are facing a farm-state-appointed Supreme Court seemingly about to reverse Roe vs Wade, where not a single credible poll in any state shows popular support for that result. A court that is filled with wannabe legislators without term limits and from which there is no right of appeal. It is also interesting to note that Justices Samuel Alito, John Roberts, Neil Gorsuch, Brett Kavanaugh and Amy Coney-Barrett were all appointed to the US Supreme Court by Presidents who lost the popular vote but won the Electoral College.

But if the Supreme Court is an immovable object, delegitimizing itself with a pseudo-legislative passion, what exactly happens when federal trial court judges, armed with the power to issue injunctive relief across the entire United States, go rogue… when they mirror that Supreme Court’s trend to legislate and find the Constitution distasteful.

No one says it quite as well as UC Berkeley School of Law Dean, Erwin Chemerinsky, editorializing in the April 28th Los Angeles Times: “One federal district court judge should not be able to halt a federal government policy for the entire country. Yet that is exactly what happened when Judge Kathryn Kimball Mizelle, in Tampa, Fla., ended the mandate for masks on airplanes, in airports, and on other forms of mass transportation. Within minutes of her ruling, some airlines — including for planes in midair — announced an end of their mask requirement.

“News reports focused on Mizelle’s ‘not qualified’ rating by the American Bar Assn. and her astoundingly narrow interpretation of the powers of the Centers for Disease Control and Prevention that, if upheld on appeal, will leave the agency without the authority to act against communicable diseases in the future.

“What seems to have escaped attention is the urgent need to eliminate the power of a single federal judge to issue a nationwide injunction to stop the federal government from enforcing a law or policy as to anyone in the United States — regardless of whether a broad injunction is necessary to provide relief for the plaintiff in the case.

“This is not a partisan issue. There have been nationwide injunctions issued against policies created by both Democratic and Republican administrations. Critics of such injunctions include staunch conservatives, like Justice Clarence Thomas, who called them ‘legally and historically dubious.’ More recently, federal appeals court Judge Jeffrey Sutton, a George W. Bush appointee, wrote, ‘All in all, nationwide injunctions have not been good for the rule of law. ... The sooner they are confined to discrete settings or eliminated root and branch the better.’… Nationwide injunctions impose restrictions on people who were not defendants in the lawsuit — and in doing so, these rulings expand the power of the district courts beyond all reason.

“Although there is some dispute over the history, nationwide injunctions were unknown until the 1960s, rare until the 21st century, and have dramatically increased over the last decade. They have been used by liberal judges to block the military’s ‘don’t ask, don’t tell’ policy on gay troops, and by conservative judges to enjoin the Obama administration’s immigration policies.

“No statute or Supreme Court decision authorizes nationwide injunctions. It is a power that federal courts have claimed as part of their authority to prohibit unconstitutional or illegal federal government actions. Ordinarily, one district court judge has no legal authority to bind other judges, just as one federal court of appeals has no authority to bind courts of appeals elsewhere in the country. Yet that is exactly the effect of a nationwide preliminary injunction: Mizelle issued a mask ruling that applied to the entire United States.”

With gerrymandering and voter exclusion/suppression/denial exploding in virtually every red state, there is no question that the United States has gravitated to minority rule. Combining this voting shift with recent Supreme Court decisions and reactions, particularly on anything that touches on white evangelical values, it is clear that a 25% of our population is the new ruling class.

I’m Peter Dekom, and I find it strange if not absurd that we support Ukraine in its battle for democracy as we accelerate away from the most basic democratic principles ourselves.