There Is No Law Anymore. There Is Only Power.
To refuse to wield power from the bench is to give up the fight against the right wing.
There was a history teacher at the ultra-conservative Baptist high school I attended in the late 1990s who sowed deep confusion in me about the role of the American judiciary.
This teacher, molding young, impressionable minds during the Clinton era, was adamant that the federal courts should be filled with judges who did what he thought should be done: Roll back the New Deal and other 20th century progressive gains until we were living in a conservative utopia, where basic rights were exclusive and young men tucked in their shirts and parted their hair on the side, not too low, not too high.
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I understood that this history teacher was a conservative reeling after a Democrat had won reelection, a turn that would have seemed impossible during the Reagn era, when Federalist Society types were envisioning a century of Republican domination. What I did not understand was his view of the courts. At 16, I held the naive Robertsian view that judges were meant to function as umpires, calling balls and strikes according to their honest, good-faith reading of the U.S. Constitution. The nation’s judiciary, per the textbooks, was to serve as a sober check on the passions of the legislative branch and the executive’s hunger for power. My Limp Bizkit-listening ass believed major questions were largely settled law, and that there were limits as to how far a judge could go in interpreting the constitution.
The courts and the judges who presided over them were supposed to be the trustworthy good guys of American governance. That seemed to be what the founders had babbled about, if I had heard correctly while half listening to history lectures and half day dreaming about buying the new Bush CD at Sam Goody after school. But it did not seem to be what my history teacher wanted. I was perplexed. Why did my teacher see the courts as a political weapon to wield against his godless enemies?
The American right, as even political normies know by now with horrifying clarity, has worked for generations to overtake the federal courts and systematically destroy 20th century gains with carefully-honed bad faith legal arguments that crawled from the swamps of constitutional originalism. Seizing control of the judiciary has the added benefit of creating a legal backstop to block any and all progressive efforts by Democrats in Congress and the White House. The right wing’s slow-motion judicial coup means Democrats aren’t allowed to govern, a view that fits nicely with the Republican notion that only conservatives have the right to run shit around here.
We see it in headlines scrolling across our various social feeds every few days. Every single Biden attempt to relieve student loan borrowers of some of their back-breaking debt has been instantly killed by some red-pilled judge in Texas or Louisiana, a judge who understands the job they were appointed to do and likes to hear their name mentioned on Fox News as a robed warrior against the leftist menace (aka, trying to improve the lives of working people somewhat).
Every single environmental gain is automatically snuffed out by a Federalist Society judge who says it’s unconstitutional to try to make the environment livable for human beings. Every Democratic effort to put the government on the side of historically marginalized groups is wiped from the face of the earth as soon as it hits the desk of some judge who was hatched in a lab to implement right-wing policies from the bench and stop societal progress with the most bad-faith bullshit legal justifications you've ever heard in your life.
Conservatives long ago cast aside any pretense of applying good-faith interpretation to the law. They don’t even pretend anymore. They simply ignore legal precedent and twist themselves into legal pretzels if it means blocking a progressive policy or law or implementing something off the right-wing wishlist. This was most nakedly seen in John Roberts and his fellow far-right Supreme Court justices giving Donald Trump immunity from all laws because Donald Trump needs immunity from all laws to avoid prison and install a fascist dictatorship in the United States (if he can tear himself away from cable news long enough). In the game of ends and means, there are no limits for conservative judges.
It’s why one can say with a straight face that there is no more law. There is only power. My history teacher understood that when Chumbawamba was dominating the airwaves. Democrats, for the most part, still do not.
The Good Guys And Their Love of Losing
Senator Sheldon Whitehouse, first elected to the chamber in 2006, is among the many (many) congressional Democrats who whine and sometimes rage about the right wing’s hostile takeover of the U.S. judiciary, but refuse to do anything about it beyond documenting the takeover and detailing how deleterious it has been for the nation's experiment in self governance. Whitehouse and his ilk seem to believe – even after all the judicial horror of the Trump era – that playing by the rules remains the best strategy in countering a conservative movement that burned the rulebook and pissed on its ashes generations ago.
To his credit, Whitehouse accurately described the federal courts as a “captured” institution during an appearance last year on the 5 to 4 Pod, which covers the civic emergency that is the United States Supreme Court. Whitehouse said he had looked into how and why SCOTUS had been taken over by the far right and its financial backers – I don't really know how much research this would require, but I imagine not much – and presented the findings to his norms-loving Senate colleagues.
And then I kept at it and I wrote the report to help convince colleagues among other things, and the next time I stood up in the caucus to say, "I know you didn't like hearing this from me last time, but the evidence just keeps mounting and at some point, we've gotta realize that this is a captured institution, and we've got to address that." And at that point, Chairman [Patrick] Leahy, who is probably the most respected member of the Senate by all of us for his seniority, and his wisdom and his long service in our causes said, "You know, I think Sheldon's actually right here." And that was a turning point moment. And then we've done all this other work since. But it wasn't that long ago when this was an unacceptable thing to say, even in the Democratic caucus in the United States Senate. So, we kinda have to learn to get our feet wet in this new area of how you call out an institution that's been captured and try to protect it and rebuild it when it seems that its Republican majority is out to destroy the institution in the service of its donors.
When pressed by the podcast's cohosts to see basic rights like access to the ballot box as an ideological stance that should be enforced by judges appointed by Democratic presidents, Whitehouse hemmed and hawed and said, basically, that he likes to think of himself as above the judicial fuckery of his Republican colleagues, and he likes to pretend that something like voting rights is "non-controversial," something on which everyone can agree. Well, voting rights are not above politics. They are politics. To think otherwise is to buy into the myth that Americans want the same thing. We don't – not even close. There was a civil war because of this. To refuse to wield power from the bench is to give up the fight against the right wing.
Whitehouse says he sees voting rights as "non-controversial" even as Republican lawmakers openly suppress the vote in red states across the nation without so much as a hint of political repercussions. Whitehouse's naive musings are assuredly sweet, sweet music to right-wing ears.
Well, I would say it's a sign of the difference between us that Democrats still treat courts like courts and simply want them to be representative and fair, and we don't take the next step and say, Here's how we want you to rule, here are our substantive priorities that we think you should follow to a certain extent, those have emerged on the Democratic side as a reaction to really horrible decisions that the Supreme Court made, the most obvious horrible decision being Citizens United, and the consequent failure to enforce the transparency provisions of it, and this whole creation of the dark money monster and the tsunami of slime that it has let loose. So I think it would be safe to say that most Democrats would want the Supreme Court to value transparency and democracy and not special interest shenanigans, but that's really a response to a particular aberration. I kinda feel rather good that we don't have that agenda, we wanna do our stuff the way it's supposed to be done through voting and winning and passing laws and doing stuff in the plain light of day, not having a bunch of people in robes, who we snuck onto the court, do the dirty work for us 'cause we can't get it passed in the Congress.
Whitehouse outright says it: We don't want to play this Republican game. We will shy away from the "dirty work" of using the courts to promote liberal-left ideology because it is unbecoming. We want, Whitehouse says, to do things the way "they're supposed to be done." That always takes precedent over winning for high-level Democrats. While there is some indication that Dems might be willing to break with their everlasting defense of "norms" – whatever that means – they cannot effectively beat back the right's war on the judiciary until they are ready and willing to use the federal courts as a tool for implementing progressive, pro-democracy policies. No longer can congressional Democrats stand haughtily above this fight; the republic can't survive it much longer.
I don't want to leave you totally shattered and hopeless about the fight to rebalance the federal courts and counteract the anti-democratic far right takeover we've witnessed in real time. President Biden has appointed federal judges at a greater clip than Trump did during his four years in power, though he might not reach Trump's final appointment tally. Biden's appointments include a lengthy list of folks with progressive backgrounds, including civil rights attorneys and public defenders. A July 2024 analysis of the courts shows the situation isn't so bleak.
Biden is the first Democratic president to get it. We have every reason to believe Kamala Harris will be the second. One thing Democrats might consider in 2025: Jimmy Carter leads all American presidents in judicial appointments because there were 141 new federal judgeships created under the Carter administration. Much to consider. Much to ponder.
Follow Denny Carter on BlueSky at @cdcarter13.bsky.social and on Threads at @CDCarter13.
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