The travesty of America's judiciary
Transformation of SCOTUS ... Alito and Thomas's ethical voids ... Rorting and stacking the courts in the Red States ... Circuit mischief ... Trump judges on the loose ... Roger Fitch reports from Washington
After Donald Trump's presidency, no US government institution, however respected, may be considered safe or immutable.
Perhaps the most striking change has been the installation of a reactionary and theocratic majority on a rogue supreme court.
The court's new term is about to start, with grave consequences likely; with a prospect that the court may claim even more power.
Perhaps it's time to reflect on the court's transformation under its tiresome Chief Justice John Roberts, in the years leading up to this term. In the view of the veteran court observer Linda Greenhouse, the CJ has already achieved everything he set out to do in 2005.
He had the help of justices who had all worked in Republican administrations (Alito, Thomas, Gorsuch, Kavanaugh) or participated as loyalist Republican lawyers in Bush v Gore (Kavanaugh, Barrett).
During the CJ's early years, the sleeper cell of Sam Alito (appointed 2005) and Clarence Thomas (1991) lay low, awaiting the moment some timely death (e.g, that of Ruth Bader Ginsburg) might make them part of an originalist majority.
The Republican Senate's refusal to confirm Obama's appointee Merrick Garland (now Biden's AG) brought forward plans, and the unexpected 2016 election of Trump fully activated the two men and their intractable rightwing agenda - witness last year's full-throated implementation by Alito of Catholic abortion policy (Dobbs), and Thomas's expansive, indeed shocking, gun decision (Bruen).
Justices Thomas and Alito both have shocking ethical standards, but the court has declined to adopt an ethics code. Alito actually claims congress has no power to legislate respecting the court, but that's clearly wrong.
Compounding his own ethics problems, Alito recently gave a controversial WSJ interview refuting a yet-unpublished Pro Publica article about him. The interviewer? A lawyer with business before the court.
Alito: enforcing Catholic abortion policy on the court
Thomas's ethics offences are even greater, and arguably impeachable.
One law prof's suggestion: a declaratory judgment of violations under the federal recusal statute, to "clarify for the voters whether they should accord legitimacy to the high court".
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The US supreme court's rulings may not have been openly bought, but that can't be said of some of the 31 state and territory jurisdictions with partisan judicial elections; there, political parties and special interests promise that their favoured candidates, if successful, will faithfully alter existing judicial precedents.
A number of state constitutions have embedded in them rights and protections, e.g, personal freedoms and the right to vote, exceeding those in the US constitution. These are regarded by Red State legislatures as impediments to the reordering of society they intend.
Consequently, following the US supreme court decisions disclaiming any responsibility for abortion or partisan gerrymanders, Red States have resorted to "turning" the state courts whose decisions - based on state constitutions - might, e.g, liberalise abortion or end gerrymanders.
Recently, such supreme court rebalancing has occurred in Republican Ohio and North Carolina, and Democrat Wisconsin, where the judicial philosophy of the supreme court has been reversed by expensive elections of party-aligned justices.
The undisguised objective in Republican states is to obtain the state supreme court's blessing for partisan gerrymanders that the US supreme court (in Rucho) found non-judiciable under the federal constitution.
Such elections don't always bring finality. In Wisconsin, the Republican legislature has a veto-proof majority, and is already talking about impeaching Wisconsin's newly-elected, Democrat-aligned, justice. A vacancy would tie the court and thwart appeals against gerrymanders.
Racial (as against partisan) gerrymanders remain illegal. Alabama's race-based gerrymander has been knocked back twice, more here, and other southern states will also have to create additional districts with an African-American majority.
Trump's judicial Ho-Ho
Democrats could pick up several house seats as a result. Or maybe not: the Trump-dominated Fifth Circuit has intervened on party lines to stay and delay Louisiana's new district.
Behind this circuit mischief we find James C Ho, a former Texas Solicitor General and perhaps Donald Trump's most dreadful appellate appointment.
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The most appalling federal judges appointed by Donald Trump are in the South, where the 5th and 11th circuit courts of appeal have been stacked with Republican ideologues.
At the same time, careful and reticent federal district court judges in the two appellate circuits have seen their influence reduced through the appointment of brash Federalist Society protégés, ambitious and proactive men and women ready to declare executive orders of (Democrat) presidents, and even established Acts of Congress, invalid.
The worst of these Trumpistes have been appointed to single-judge federal districts (e.g, Aileen Cannon in Florida), thus simplifying conservative forum-shopping.
Texas has been the centre of most of this; the state offers a textbook example of the express train that transports "movement" Republican lawyers from elected (attorney general) or appointed (solicitor general) state offices to lifetime judicial appointments on the federal bench.
A previously unremarked Trump appointee in Texas, Brantley Starr (Ken Starr's nephew) has surfaced and is already being called the worst Trump judge in America.
In one ruling, Starr ordered an airline's lawyers to take "religious liberty training" conducted by the Alliance Defending Freedom. That's the "Christian" litigant systematically rolling back civil liberties, e.g, in 303 Creative v Elenis, last June's fraudulent supreme court decision that licensed discrimination against sexual minorities on the basis of claimed religious beliefs.
The lawyers obtained a temporary stay.
Starr joins the pungent company of fellow Texan Matthew Kacsmaryk, another "worst judge". In Alliance for Hippocratic Medicine v FDA (also an ADF case), Kasmaryk struck down the FDA's 2000 approval of the abortion drug mifepristone.
Kacsmaryk's appointment met with alarm
Limitations having run, the Fifth Circuit quickly reversed.
Yet another Trump-Texan, Drew Tipton, attempted to stop an immigration policy at the behest of Texas and Louisiana. As neither state had standing to sue, the supreme court overruled Tipton without reaching the question of states exercising immigration powers or purporting to participate in immigration policy, exclusively a federal matter.
Neighbouring Louisiana also has an activist Trump judge, Terry Doughty, who has issued an "aberrant" First Amendment decision constraining Biden administration communication with tech companies such as Facebook.
One journo suggested that Judge Doughty had effectively named himself president. More here.
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With luck, there will be no more Trump judges. Here's an update on Trump-related trials:
• September 29 - Georgia state RICO case - first guilty plea by a Trump co-defendant;
• October 2 - Trump's bench trial in NY for civil damages; judge has already called in receivers after entering summary judgment for fraud;
• October 23 - Georgia RICO co-defendants Chesebro and Powell face trial, and could plead out;
• January 15 - NYC civil trial to determine the measure of damages for Trump's renewed defamation of the writer E Jean Carroll;
• March 4 - Trump's DC trial for election-interference;
• March 25 – tentative date for Trump’s NY State trial for hush-money payments to Stormy Daniels;
• May 20 - Trump's Florida trial for mishandling classified documents.
