There’s a lot happening in the law right now, and almost none of it is good. I believe we are entering a time that history will judge to be a dark age in American law and society. I fear that we may be witnessing the demise of our democracy and the rise of authoritarian rule.
With today’s announcement of the retirement of Justice Kennedy, the theft of the appointment of the replacement of Justice Scalia’s seat from President Obama, the complete disregard of Democratic or progressive interests in the appointment process, the recent slew of 5-4 decisions, and punting of other important decisions, I can’t help but feel that American law as I have known it is ending. The future may see the election of more moderate individuals to the presidency or Congress, but the Courts are likely to be in the hands of ideologues for a generation to come. This is damage that cannot be undone with an election.
Republican obstruction created a large number of vacancies on the Federal Courts that are now being filled by Donald Trump in what is the most aggressive and politicized court-packing in our nation’s history. The individuals being appointed largely come from the membership rolls of the Federalist Society, an elitist hard-core conservative group. These appointees are young, predominantly male, and 90% white, with no person of color having been confirmed since Trump has taken office. A record number of these appointees have been deemed unqualified by the American Bar Association. Indeed, the lack of qualification has become well known through the inability of one candidate to answer basic legal questions and his admission that not only had he never tried a case, but he had never even taken a deposition on his own. Apparently, his firm didn’t trust him to handle a case, but Donald Trump trusted him to be a Federal judge with a life-time appointment.
A couple of weeks ago, I attended the Florida Bar Conference, where more than a thousand Florida lawyers gathered to discuss changes and developments in the law. I’ve never seen such anxiety among lawyers nor have I ever heard such pessimism. Time and time again I heard lawyers question whether the rule of law would remain in place until next year’s conference.
For some time, I’ve clung to the belief that the Courts would stand strong against Donald Trump’s authoritarian and totalitarian tendencies, but as I look at the decisions rendered in the past week, I realize that my hope is misplaced. To date, although lower Courts have restrained President Trump, the Supreme Court has refused to do so. Furthermore, when faced with questions such as the Colorado gay cake case or political gerrymandering the Court has effectively declined to rule by remanding the cases on technical grounds.
I believe that what we’re currently seeing is a strategy of appeasement, led by Justice Roberts, in hopes that the Court will survive this president and congress. Given that the Court has to deal with a president who is clearly overtly hostile to, and not at all restrained about publicly denouncing, any court that rules against him and who is now threatening to remove issues such as immigration from judicial review, the Court is understandably intimidated. Unfortunately, Congressional Republicans, who are also clearly afraid of incurring president Trump’s twitter wrath, show no evidence that they would back the Court in a fight with the President. Thus, the Supreme Court is fighting alone for its very legitimacy and authority. Unfortunately, one need only look at history to see that appeasing tyrants is destined to fail. Someday, the Supreme Court will have to reckon with its complicity in the dismantling of the rule of law and justice in our nation.
Here are my predictions for the future of American law and society:
- Privacy and reproductive rights will be severely restricted.
- We will see continued expansion of corporate first amendment rights which will be utilized to disempower and diminish the rights of workers and minorities.
- Efforts to reform the voting process, fix gerrymandering, and remove money politics will be blocked by the Court.
- The Court will chip away at civil rights and the Voting Rights Act.
- There will be an expansion of Presidential power due to the Court’s fear of and deference to Trump and the failure of our dysfunctional polarized highly partisan Congress to meaningfully address issues or crises facing the nation. In other words, the other branches of government will shrink and cede power to Trump moving us closer to totalitarian government.
- There will be decreased civil rights across the board for natural persons, while rights for business and corporate interests will expand.
- Roe vs Wade will be overturned.
- Consumer access to the courts will continue to be diminished and consumer protection statutes will likely be removed or greatly diminished either by Congress or invalidation by the Courts.
- Gun rights will continue to expand and efforts to impose reasonable gun-control measures will be blocked by the Court.
- Unless the Court stands up to limit Trump’s executive authority, it will eventually become a merely symbolic institution, lacking any real authority or input into American law,and the nation’s slide into totalitarian rule will be complete
GARDYLOO – “used in Edinburgh as a warning cry when it was customary to throw slops from the windows into the streets”
