The Mahablog

Politics. Society. Group Therapy.

The Mahablog

What to Do About the Corrupted Courts

The new news is that Steve Bannon has been indicted by New York state on charges that he defrauded donors who gave money to a campaign he co-organized to build a border wall. He was pardoned by Trump for similar federal charges, but a presidential pardon doesn’t apply to states. Heh. He’s expected to surrender tomorrow.

So last night we learned that the Mar-a-Lago search warrant turned up a document about some other country’s nuclear weapons.  In sum:

We don’t know if the nuclear secrets were in the basement or the office or a linen closet or spread under a leaky chafing dish in some banquet hall. What we do know:

Some of the seized documents detail top-secret U.S. operations so closely guarded that many senior national security officials are kept in the dark about them. Only the president, some members of his Cabinet or a near-Cabinet-level official could authorize other government officials to know details of these special-access programs, according to people familiar with the search, who spoke on the condition of anonymity to describe sensitive details of an ongoing investigation.

Documents about such highly classified operations require special clearances on a need-to-know basis, not just top-secret clearance. Some special-access programs can have as few as a couple dozen government personnel authorized to know of an operation’s existence. Records that deal with such programs are kept under lock and key, almost always in a secure compartmented information facility, with a designated control officer to keep careful tabs on their location.

There has been robust criticism of Judge Cannon’s special master decision. Legal scholars like Andrew Weissmann were driven nearly speechless by what a steaming pile of crap the decision is. For now I’d like to just point to what Dahlia Lithwick and Mark Joseph Stern write at Slate.

The judiciary, they write, has been deeply corrupted with Trump-appointed Federalist Society judges, like  Aileen M. Cannon. And this is going to be a huge impediment to the United States for many years, because these lawyers are not just corrupt; they are also young.

So the problem is not just the extreme and heinous flaws in Cannon’s ruling. It’s also the Trump-shaped world in which Cannon operates, with impunity, which we will all have to endure for the foreseeable future. It’s the brutal reality that we may face a steady stream of depraved decisions like Cannon’s for the rest of our lives—and the pain of hearing from every quarter that nothing can be done to remedy it.

We watched the same pattern play out at the end of this last Supreme Court term. One case after another blew up decades of existing precedent and tests and doctrine and replaced them with Rorschach exams that transformed contemporary Republican policies into constitutional law. Smart lawyers dutifully digested these opinions and set to work figuring out just how the EPA, or public school districts, or state legislatures that want to stop mass shootings can plausibly work around these new tests. And of course, were we living in a rational regime in which the rule of law governed, that would make perfect sense. But if the last term at the Supreme Court and indeed Cannon’s baffling new order mean anything, they signify that in this new age of legal Calvinball, one side invents new “rules” and then the other scrambles to try to play by them. For every single legal thinker who read the Mar-a-Lago order to mean, quite correctly, that ex-presidents are above the law, furrowing your brow and pointing out its grievous errors only takes you halfway there. The better question is what, if anything, do you propose to do about it? The furrowing is cathartic, but it’s also not a plan.

In short, lawyering alone is not going to help us. Playing by the rules is going to leave us vulnerable. The first and most reasonable solution is expanding the courts.

Expanding the courts—even just the lower courts—is the most bulletproof. 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.

Republicans will scream about “court packing,” but after the Dobbs decision I don’t think a majority of Americans will mind at all. I think this has to be done, And all we need is a Senate majority to do it.

There are other worthy ideas too. Term limits for justices and lower court judges. Limits on courts’ jurisdiction to strike down democratically enacted laws. Modest reforms that restrict the Supreme Court’s ability to suppress voting rights before an election. Let’s hear them all. (God knows Biden’s court reform commission studied them extensively, to little end.)

Term limits would require a constitutional amendment, I’m pretty sure. I assume Congress could put limits on courts’ jurisdiction to strike down democratically enacted laws, but I’d have to think about that one. What if some future Congress passes some crap right-wing laws?

But, yeah, our future depends on the midterms and enough Democrats with spines to do what needs to be done.