Judicial Rot Is Deeper and Wider Than SCOTUS

Tonight is the State of the Union address. Once upon a time among those we’d see in the front row of spectators were the Justices of the Supreme Court. As with the Chairs of the Joint Chiefs they had to have one helluva good reason for not being there. Those days are gone. SCOTUS has of course been prominent in the news lately. There was of course their decision regarding Trump’s ballot access. And of course their decision to hear his ridiculous “Presidential Immunity” appeal. In both cases it’s clear the six Federalist Society groomed and appointed by Republican Presidents are acting not as judges but politicians. To protect Trump. Such will be the legacy of Mitch McConnell. However for all the attention on SCOTUS the problem is far worse than people tend to think about.

Although under Chief Justice John Roberts SCOTUS has significantly curtailed the number of cases it hears, the fact is most of federal law has always been made at the appellate court level.  Thousands of decisions are handed down by the eleven Circuits every year and SCOTUS can’t review them all even if it wanted to.  That puts an awful lot of power in the hands of federal judges, even at the district court level in certain Circuits as even some questionable if not extreme decisions have a good chance of being upheld at the Circuit/appellate level. And as a result in other Circuits, absent a contrary ruling those decision effectively become the law of the land. Without SCOTUS lifting a finger.

That’s where the unholy alliance of Leonard Leo & his creation The Federalist Society and Mitch McConnell comes into play. The Federalist Society was conceived and established some forty years ago when the conservative mantra about “activist judges” became a staple of GOP thinking. Leo and others REAL problem wasn’t with “activist judges” but that judges weren’t activist in the way they wanted them to be. So they set about to seed law schools and the judiciary (both state and federal but especially federal) with judges and Justices who would advance conservative dogma they could never pass via the legislative process. To become judicial POLITICIANS and impose their agenda via judicial fiat!

It was a long-term project from the beginning. Leo likely knew his dream wouldn’t be fully realized in his lifetime but he spread the seeds of his vision far and wide and over time it began bearing fruit.  Including at our highest Court with the appointment of Clarence Thomas by the elder Bush. Yep, Thomas was a Federalist Society f**kwad from early in its existence. With the second Bush, who lost the popular vote and only got the barely needed number of electoral votes thanks to a SCOTUS with other Federalist Society adherents we got Roberts and Alito. (More on Roberts in a bit) Then came Obama, and that’s when the Leo/Federalist Society and McConnell really went to town.

Old norms for “advice and consent” started going by the wayside and not just for SCOTUS picks. Obama found it increasingly difficult to get nominations for any federal judgeship through to confirmation. And then in his second term McConnell pretty much stonewalled and held open a record number of vacancies in the hopes of having a Republican President to fill them after the 2016 election. As you know he even held open a SCOTUS seat! Hillary Clinton (and others) tried to get people to pay attention to the consequences during that election but to no avail.

I wonder how many of the AZZHOLES who just couldn’t bring themselves to vote for Hillary for “reasons” are beside themselves over what Trump’s THREE SCOTUS picks in only one term have wrought?  Hey, for any of you reading are you still PROUD of yourself?  Do you still feel so f**king puffed up over sticking to your “principles” now? Do you have the gall to be complaining about SCOTUS, and other things I’m about to get to? Or do you feel the overwhelming sense of shame you deserve to suffer from, and for the rest of your lives? Countless people will suffer and by god you should too for your role in inflicting the damage that’s been done, and that yet to come.

The Dobbs decision was as was said from the time it was leaked only the beginning and that’s why I’m writing today.  Most abortions take place in the first trimester and the most common method is medication abortion. The drug Mifepristone is a key part of this method yet anti-abortion zealots went judge shopping to find a hack who would proscribe its use. They found a friend in federal judge Matthew Kacsmaryk in Texas, who answers to an equally conservative appellate court. Despite decades of safe use (not just for the “off brand” purpose of abortion but for other medical conditions) the judge ruled the FDA didn’t know jack and enjoined use of the drug nationwide! Fortunately an appeal quickly worked its way up to SCOTUS and they stayed the ruling from taking immediate effect. But they didn’t shoot it down! Nope, they will hear oral arguments on the case later this month on March 25 according to SCOTUSblog. (Mark your calendars)

Want more? Let me tell you about federal District judge (also in Texas) Mark Pittman. He’s just issued a ruling that a federal program designed to assist minority business owners has to start helping WHITE businesses too, relying on SCOTUS’ Students For Fair Admission v Harvard ruling. His gems include:

• On November 10, 2022, Pittman ruled that the Biden administration did not have the authority to forgive student loan debt through executive action through the HEROES Act.^[14]

• In December 2022, Pittman ruled that Texas’ law banning people from 18 to 20 years of age from carrying concealed handguns was unconstitutional in light of New York State Rifle & Pistol Association, Inc. v. Bruen.^[15]

• In March 2024, Pittman ruled that the Minority Business Development Agency was wrong to discriminate based on the color of someone’s skin, citing Students for Fair Admissions v. Harvard.^[16][17]

Guess what? BOTH of these guys were appointed to the federal bench by Trump. Thanks to McConnell’s having held open all those judgeships around the country! The two of them have been wreaking havoc (and with their ultra conservative Circuit’s blessing) since 2017. They are but two of the judicial land mines McConnell and Leo/The Federalist Society have planted around the country. Young, fiercely ideological judges who have no qualms about not just legislating, but imposing conservative dogma from the bench.

And then we have the matter of the too often and for all the wrong reasons in the news federal District Court judge Aileen “Loose” Cannon. HER appointment was something else. Her nomination got little attention, and was voted out of committee in Sept. 2020. However, it wasn’t brought to the floor for one assumes McConnell not being sure he could push it through. However AFTER the 2020 election, in what by then had become the lame duck session McConnell forced through a cloture vote and subsequent confirmation vote. So much for taking the will of the voters into account.

And of course you’re familiar with the saga of Yertle oh so piously intoning after Justice Scalia died that even though it was only February of 2016 that NO Obama nominee would get so much as a hearing, much less a confirmation vote as to paraphrase: It’s an election year and for a Justice of the Supreme Court the voters should have a say in who gets to fill the seat. I said then and have since what Yertle was really saying was that just as slaves only counted as three-fifths of a person, a black President only got three-fifths of the powers of the Presidency.  Well, damned near three million more Americans voted for Hillary Clinton as Trump but due to the vagaries of the vestigial Constitutional Organ we know as the Electoral College Trump got into the WH and gave us staunch Federalist Society member Neil Gorsuch.

However, McConnell wasn’t done. Justice Anthony Kennedy was FORCED out (he’s already hired law clerks for the next term – he had not intention of retiring until forced to) and we got Brewksi Brett Kavanaugh. Yet another Federalist Society type who back as a young “Turk” in the 1990s worked with another one, none other than eventual Chief Justice John Roberts (I said I’d get to it) on Ken Starr’s Inspector Javert level pursuit of Bill Clinton! Then with one last insult to injury (more like a F**K you America, democracy and the rule of law and the will of most of you) when the iconic Ruth Bader Ginsburg died McConnell’s prior no SCOTUS appointments in an election year went right out the window.

Scalia died early in 2016. When Ginsburg died early voting had already started in some states. But by grab McConnell (and Leo) weren’t about to hold back from jamming one more Federalist Society zealot onto SCOTUS and so we have Justice Barret. The ANTI Ginsburg. A bookend to Bush 41 replacing the iconic Thurgood Marshall with Clarence Thomas. The ANTI Marshall.

But again, the reason I’ve written all this is to point out that while you can and should be worked up about SCOTUS, their decisions have a much broader reach than you realize. Because of the alliance of Leo/The Federalist Society and McConnell the federal judiciary had hundreds of zealots out there doing damage. And being young and with lifetime appointments they will have decades to do much, much more. THAT should scare the hell out of everyone. I’ve given you some examples of what’s already taken place and hope you realize it’s only the start. The ONLY thing we can do at this point is to water down their impact.

How? I’m hoping that tonight President Biden is every bit as good as he was last year, if not better. He can completely reshape the Presidential race if he’s on his game tonight. I happen to think he will do just that. However, the best of us can have an “off” day/night and you can be sure executives at news outlets have issued marching orders to their “talent”, the folks you see on TV and their high profile writers. SEIZE on ANYTHING that can be played up that Biden is “old” and “not up to the job” so they can have their goddamned “horse race” and make more money.

So if the worst happens and Biden doesn’t hit a grand slam out of the entire ballpark keep i mind the stakes.  The ability to appoint federal judges and Justices is as important as any issue that will be on voter’s minds come fall. Or should be. It wasn’t in 2016 and look at what’s happened over apathy about judicial appointments. Also, the Presidential race drives down ballot races. Sweeping in a new Biden administration by getting out even more voters than 2020 will be crucial to retaining control of the Senate. Without control of the Senate Biden’s appointments will get slow-walked or never even come up for a vote.

WITH a second Biden administration, AND more than a bare majority in the Senate guess what? Expansion of the federal judiciary, more federal judges which is something Chief Justice Roberts has strongly advocated for for fifteen freaking years is possible. So is the expansion of SCOTUS. I keep saying there are eleven Circuits so at the very least we should have eleven Justices. That would water down the Federalist Society’s ability to use their appointees as an “ultimate legislature AND executive” branch of government. Frankly, a couple of the circuits should be split up into smaller and more manageable ones. In addition to still more judges, it would water down the ability of zealots in conservative circuits to impose law on the entire country.

It’s a lot to think about I know. I’m just laying down a marker. Even if Biden doesn’t hit a home run tonight, or worse has a bad night we HAVE to work like hell to overwhelm Trump, McConnell and The Federalist Society. The latter two are so close to their goal (decades before they thought possible) they can smell it and they are going for broke.  I don’t care if it’s his age, or him not cutting off Israel, or not doing enough on climate change (WTF? He’s done more than ANY President has) or “reasons” to GET THE HELL OVER IT!

If you’ve extended me the courtesy of reading this, well now you know the stakes.  It’s up to us. SCOTUS, between the ballot access ruling and choosing not to hear the immunity appeal until the last day in the term oral arguments on any cases this term will be heard means there won’t be a federal trial of Trump this year. So again, whatever your “issue” get over it, STFU about it and get to work. Cross your fingers that President Biden will shine like a star tonight and if he doesn’t resolve yourself to having to work that much harder to overwhelm the GOP at the ballot box come fall.

If you don’t, the America you know today will be GONE this time a year from now.