What Happens When Lower Federal Courts Still Believe in the Constitution

 

What Happens When Lower Federal Courts Still Believe in the Constitution

And the Supreme Court Does Not?

Whether it is classical “take ‘gifts’ or money” from those whose cases are likely to come before you or flagrantly announce to the world where you stand politically, the result is corruption and a loss of trust before the general public. Thus, we have Supreme Court Justices literally taking advantage of their rather unique complete lack of any constitutional ethical restrictions; short of impeachment by a highly partisan Congress, they are not bound by the same rules of ethics that apply to every other federal judge. All judges and justices – state and federal – are expected to put aside their personal biases, their political affiliation (including any deference to who appointed them), steer clear of obvious improprieties and embrace neutrality. Except the United States Supreme Court. The two most blatant violators on that Court are Justices Alito and Thomas.

“Supreme Court Justice Samuel Alito has been infuriating his critics for years. He has gone on undisclosed luxury vacations with conservative donors who have business before the court. He appears to have leaked the result of a major case to conservative activists before the decision was announced…. But the revelations … concerning the political flags flown at Alito’s homes [pictured above] — an upside-down American flag in the days after Jan. 6, 2021, and an ‘Appeal to Heaven’ flag in the summer of 2023 — have pushed Alito’s behavior into an entirely different realm, one that raises serious questions about Alito’s partisanship, his ethics and the integrity of the court… The upside-down American flag has historically been used as a sign of distress by the U.S. military but became a symbol of support for Donald Trump’s ‘Stop the Steal’ movement following the 2020 election, and the Appeal to Heaven flag has been used by Christian nationalists. Both were flown by Jan. 6 rioters.” Politico, May 30, 2024

Through benefactor Harlan Crow and the rightwing mega-wealthy cadre he represents, Supreme Court Justice Clarence Thomas has far exceeded the largesse bestowed on Justice Alito, including a super-luxury motor home, lavish vacations (as reflected in the two photographs to the right above), with financial benefits accorded to family members. Thomas has been less overt than Alito in his unbridled support for Donald Trump, leaving political pressure to his wife, Virginia. “Ginny” was strident in the “Stop the Steal” movement, for example.

While Alito and Thomas weren’t obviously “right wing litmus test” appointments, virtually every other federal justice appointed by Donald Trump was. When a legal system defers to the whims of a single leader, the constitutional guardrails begin to collapse. I think it is valuable to reach back to my 2018, Rule of Law vs Rule by Law, blog to understand that most relevant underlying principle:

Who creates the laws, and their reference points and political, legal or cultural limitations determine rule of or by the law. A theocracy, like Iran, elevates Quranic law, as interpreted by Shia’s highest theologians above any laws created by human beings. Germany’s Nazi Party also had a legal system, but its laws were applied to amplify individual power and the party of the Fuhrer himself. When the law emanates from a single leader, one who cannot be contained by a judicial system, that is clearly rule by law. The LexisNexis Rule of Law Foundation determined that “rule of” requires examination of four core values, noting that “The stronger each of these components are, the greater the rule of law.

• Equality Under the Law - All people, businesses and governments are accountable, and the law applies to everyone in the same way, no matter who you are.
• Transparency of Law - Laws must be clear, precise, affordable and accessible while protecting fundamental human rights.
• Independent Judiciary - An independent judiciary ensures equality and fairness of law between people and public officials.
• Accessible Legal Remedy - There must be access to timely resolution in a court of law.”

It is little wonder, then, a move to autocracy almost always starts with the wannabe dictator’s attack on the judiciary. It can be personal attacks on individual judges… or attacks on the “integrity” judicial decisions. If a government can simply ignore a judicial decision or appoint judges who are merely rubber stamps to the determination of a unilateral authority, that system of government cannot protect its citizens from the arbitrary application of the law, an essential trait for “Rule of.” Recent decisions of Trump’s reconfigured Supreme Court reflects partisanship on steroids and an overt deference to a single, supreme authority figure: The President.

But even if the Supreme Court has produced a “rule by law” 6-3 rightwing cabal, there is a rising rebellion among federal trial and appellate judges that simply refuse to play the “autocracy game.” These “rule of law” judges, some appointed by Trump himself, have been subject to personal attacks by the President, when they do not “follow orders,” and many have, as a result, faced death threats (to themselves and their families) just for doing their job. Writing for the December 1st Washington Post, Brianna Tucker explores this noble assemblage of honorable federal judges:

“In a dozen interviews with The Washington Post, former judges and one soon-to-be-retired judge described a judiciary under incredible strain and its integrity threatened by partisan attacks, antagonistic rhetoric from public officials and ambiguous decisions handed down by the nation’s highest court… Many judges said the politicization of judges, the Supreme Court’s expanding use of emergency dockets and sustained criticism from the Trump administration have pushed the courts and democracy to a fragile tipping point—one where cooperation with rulings and adherence to the rule of law can no longer be assumed.

“‘There’s not a person in our country that, whether they think about it or not, does not depend upon the ability of these fundamental rights and liberties to be protected in an action in court if there is someone who violates that,’ said Paul Grimm, a retired judge for the U.S. District Court for the District of Maryland… The consequences, judges warn, are already becoming visible in who’s willing to serve as a jurist, global shifts in judicial norms and the types of justice the U.S. system can still deliver…

“The judiciary is considered the weakest of the government’s three branches. It can’t enforce its orders and relies on compliance from other branches, persuasion and perception for efficacy. The former judges strongly maintain that courts are the sole backstop to power imbalances and backsliding into authoritarian government… The White House dismissed the criticisms of the judges, citing ‘unlawful’ lower-court rulings…‘The real threat to the rule of law are these lower court judges who are consistently ignoring the law in service of their own personal political agenda. The reality is, with over 20 Supreme Court victories, the Administration’s policies have been consistently upheld as lawful,’ White House spokesperson Abigail Jackson said in a statement.

“But some of them warn that Trump’s clashes with judges echo how leaders in foreign countries sought to undermine the strength of their courts—from right-wing court reforms in Hungary to attempts by Israeli Prime Minister Benjamin Netanyahu to shift power away from the judiciary… ‘All you have to do is look back on what occurred in Nazi Germany,’ said Barbara Pariente, a former chief justice on the Florida Supreme Court.” The Department of Justice has become Trump’s personal law firm charged with inflicting “retribution” on his political enemies, and he is using federal agents and troops as his personal instruments, often acting without warrants or even valid and clear identification, against US citizens.

I’m Peter Dekom, and what the Trump administration, its appointees and its officials are creating is a one-party autocracy under his direct and sole authority… without reference to the US Constitution.