We Don't Have To Live With This Judicial Bad Faith

We all laughed when Donald Trump babbled incoherently about his big, beautiful judges. We smirked and said this is just how a showman talks about his accomplishments. These are legal experts. They do not belong to Trump.

It turns out those big, beautiful judges understood perfectly well their assignment when they were appointed by the waddling mob boss in the Oval Office. For these judges were baptized in the fire of judicial bad faith, taught by the toxic Federalist Society and activist judges on the circuit courts and the Supreme Court that they can and should make new legal precedent from whole cloth if it means protecting and advancing the conservative project. They were taught that nothing else matters.

These big, beautiful judges were around before Trump, during Trump's presidency, and they'll be on the bench for a generation after the Big Boy and all his various rivals is six feet under. The right's bad-faith legal project has nothing to do with Donald Trump, who is but a cog in the machine that has and will continue to transform the U.S. judiciary into little more than a backstop for far-right causes.

The face-melting bad faith of Republican appointees to the federal courts is top of mind, of course, because a hack judge named Aileen Cannon, a Trump appointee to the Southern District of Florida, did her damndest last week to let Trump wriggle out of yet another jam – this time stealing other nations' nuclear secrets. No biggie.

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Cannon, in case you have not heard, said the former president still somehow has executive power and privilege, and that his theft of top secret government documents is covered that said privilege. Incredibly, Cannon ordered a stop – perhaps temporarily – to the federal government's investigation of our criminal former president. Any American who has even a fleeting grasp of constitutional knowledge understands a federal judge has no power whatsoever to halt an ongoing criminal investigation of anyone at anytime. Legal analysts have called Cannon's ruling "an imperious assault on the separation of powers."

Cannon's wildly unconstitutional ruling was steeped in bad faith. There is no possible way Cannon believes anything she wrote in her ruling carries the weight of legal precedent. And that's exactly what bad faith is: Not believing what you claim to believe in order to create a reality that requires your preferred outcome. In this way, bad faith is unbeatable.

The Cannon ruling has to constitute a five-alarm fire for anyone who thought the country could move on from what many perceived as a fascist hiccup in 2016 – nothing more than a flirtation with radical, anti-democratic right-wing politics. The result of that hiccup and Mitch McConnell's rabid determination to stack the federal courts with radicalized, unqualified judges who would do exactly as they were told, has given us a judicial system that cannot exist in a functioning republic. Republican court appointees who craft bad-faith precedent after bad-faith precedent are the greatest threat to the continuation of whatever semblance of democracy we have left. That we have at least five, maybe six, Supreme Court justices who subscribe to the horseshit theory of constitutional originalism – the font from which all bad faith springs – should cause daily panic attacks among Americans who would very much like to maintain a democratic republic beyond 2024. There can be no progress in American society for as long as an army of bad-faith, ill-willed, politically determined judges dominates the federal courts.

The advancement of human rights has been stopped cold, and in some cases, rolled back, since McConnell and Senate Republicans set out to stack the courts with their operatives. Republican-appointed judges have shredded campaign finance laws meant to prevent billionaires from buying elections, eviscerated the Voting Rights Act, made it nearly impossible to regulate the sale of weapons of war on American streets, ended legal abortion in more than half the country, and are probably mere months away from stripping LGBTQ folks of their constitutional right to marry. Just this week, a right-wing federal judge in Texas said Christian-owned companies don't have to provide HIV medication to their workers because of the bad-faith concept of religious freedom (if you believe in a bearded man in the sky, you don't have to follow any laws).

This unraveling of progress, of course, was all part of the plan. None of it happened by accident.

For as bad as this seems, for as much consternation as it causes you, it does not have to be this way.

Dahlia Lithwick, a legal analyst for Slate, wrote recently that expanding the circuit courts is the most "bulletproof" way to blunt the terrible impact of fascist judges making up the law as they go along. This goes (almost) completely undiscussed in favor of the more easily-grasped idea of expanding the Supreme Court, which should also be done posthaste.

Congress has periodically added seats to the federal judiciary from its inception to help judges keep up with ever-ballooning caseloads. Today’s litigants (who are not named Donald Trump) often face yearslong court delays. The Judicial Conference, a nonpartisan government institution that develops administrative policies, has begged Congress to add seats to the lower courts. Some Republicans have supported the idea in recognition of the crisis facing our understaffed judiciary. Letting Joe Biden balance out far-right courts like the 11th U.S. Circuit Court of Appeals—which will weigh Cannon’s ruling if the government appeals—would go a long way to tame the jurisprudence of Trumpism. When district court judges know their radical decisions will be overturned on appeal, they may be less likely to swing for the fences in the first place.

Far-right federal judges have been open about their post-2016 green light to make radical bad-faith rulings in a legal landscape that won't challenge those rulings or outright call them out for being legally nonsensical and shamefully political. Clarence Thomas, upon repealing bodily autonomy for American women this summer, gleefully wrote about what the Supreme Court's extremist right wing should do next now that there is no impediment to total domination. Thomas and a host of fascist federal judges are betting that Biden and congressional Democrats won't have the spine required to reshape the judiciary to counteract the bad actors appointed by George W. Bush and Donald Trump, by far the two most important figures in the long and ugly history of the American conservative movement.

There is nothing left to do but to expand the federal judiciary. You cannot shame a shameless person into acting in good faith. You can't point to the rule book again and again and hope that one day it will take – that bad actors like Aileen Cannon will hear the criticism and say, well yes, I have been acting in bad faith and I should stop that. They will never stop. They can only be stopped with radical legislative action.

We can't live with a generation of anti-democracy judges crushing all progressive efforts while defending far-right lawmaking and the hideously immoral people crafting those policies.

"Lawyers are trained to lawyer. But if you are lawyering within a system you believe to be broken, or immoral, or lawless, and you aren’t standing up with meaningful fixes for that system, you are, fundamentally, acceding to that lawlessness," Lithwick said. "It is a moral victory to point out the errors, but it’s also a tacit concession that the system is, in fact, legitimate, no matter how low it may go. Every one of us is going to need to decide how long we can continue to operate that way."

No amount of wishing can overcome the right's capture of the federal courts. Democrats have three months to act before the acceleration of the fascist project hits a new gear.

Follow Denny Carter on Twitter at @CDCarter13.

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