Photo credit: Oliver Willis
United States Supreme Court Building
Most Americans recognize the life-threatening danger to our nation from Donald Trump’s incompetence as he falsely assures us his bungled delay of mass-testing was a “perfect” response to the world-wide novel coronavirus (COVID-19) health pandemic upending our daily lives. But Americans also need to be aware of all the dangers to democracy Trump’s mean-spirited policies intentionally inflict upon the country.
Milwaukee Federal Judge Lynn Adelman is calling out the long-term damage to America from Trump and the rightwing majority on the U.S. Supreme Court for their continued destruction of basic constitutional protections for all Americans. Adelman’s scathing law review article carries the blunt title: “The Roberts Court’s Assault on Democracy.” In it, Adelman calls Justice John Roberts’ promise at his 2005 confirmation hearing to be a neutral umpire calling balls and strikes “a masterpiece of disingenuousness.”
“The Roberts Court has been anything but passive,” Adelman writes. “Rather, the Court’s hard-right majority is actively participating in undermining American democracy. Indeed, the Roberts Court has contributed to insuring that the political system of the United States pays little attention to ordinary Americans and responds only to the wishes of a relatively small number of powerful corporations and individuals.” Adelman wrote the article for the Harvard Law & Policy Review, the law review journal of the American Constitution Society, described as “a diverse nationwide network of progressive lawyers, judges, law students and scholars.” Former Wisconsin Democratic U.S. Sen. Russ Feingold, who currently teaches at Stanford Law School, was just appointed the organization’s new president.
Rightwing Majority
Adelman acknowledges that the rightwing majority on the Roberts Court preceded Trump’s presidency, but he also notes that, although Trump “ran as a populist and promised to promote policies that benefited ordinary people, upon taking office, Trump almost entirely reversed course.” Trump’s temperament is actually “that of an autocrat,” Adelman wrote, which means more of the president’s appointments would guarantee an extreme, rightwing court majority for decades to come.
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Although federal judges frequently write law review articles on current legal issues, it’s unusual for a sitting federal judge to so directly challenge the U.S. Supreme Court, whose final decisions they must enforce. But what is happening to the rule of law and the federal judiciary under Trump is not just unusual, it’s extremely dangerous.
Republican U.S. Senate Majority Leader Mitch McConnell refused for nearly a year to consider a highly qualified Supreme Court appointee by then-President Barack Obama so Trump could fill the opening with a rightwing nominee if he were elected (which he did with Neil Gorsuch). The Republican Senate majority then approved a second rightwing Trump nominee, Brett Kavanaugh, without fully investigating a credible accusation that he had drunkenly sexually assaulted a female high school student as a teenager. After Democrats won control of the U.S. House of Representatives in 2018, Senate Republicans stopped passing legislation in order to work full time approving more than 160 rightwing Trump judges to federal appeals and district courts with little vetting into whether they held racist or other crackpot legal philosophies.
Anything conservatives can do to distort court decisions toward the extreme right is acceptable in Republican politics today, but the factual legal article written by Adelman—who was appointed to the bench by former President Bill Clinton in 1997—has been viciously attacked on rightwing websites. The attacks seem to suggest that federal judges shouldn’t publicly criticize the chief justice or decisions of the Supreme Court.
‘A Duty to Criticize Decisions That Are Flawed’
Why not? Adelman specifically challenged partisan majority opinions written by Roberts gutting key portions of the landmark 1965 Voting Rights Act permitting current Republican voter suppression tactics against racial minorities and another decision declaring federal courts could not act to prevent the kind of corrupt Republican gerrymandering that violated the will of Wisconsin voters in 2018. In those midterm elections, Democrats won 53% of Wisconsin Assembly votes, but won only 36 seats in the chamber, while Republicans won 63 Assembly seats due to their dishonestly drawn voting districts.
As Adelman explained in an interview on CNN, “It’s reasonable to criticize decisions of the Supreme Court. I understand that I’m bound by them, and I’ve done that [complied with those decisions in rulings], but I think I have a duty to criticize decisions that are flawed.”
Dahlia Lithwick and Mark Joseph Stern, legal analysts writing for Slate, said it was about time progressive federal judges who know the law spoke out. “Indeed, most of the article is the descriptive stuff of triumphalist Federalist Society touchdown dances at national conferences,” celebrating the increasing rightwing tilt of the Supreme Court, they wrote. “The real tragedy here is that progressive judges will be pilloried for saying out loud what conservative judges have secretly, and not so secretly, crowed about for decades.”
The only thing worse than everything Trump has failed to do out of ignorance to protect our country in a world-wide public health crisis are all the things he has done on purpose to the courts to make our country a very different, less American one.
