One of the many problems that’s come to a head these last few years is the increasingly activist Judicial branch, in a system that was designed to be balanced through three active and competitive branches. Congress has ceded more and more power to the Executive branch for the better part of 50 years. And it’s barely functioned for the last 10 years, as the Republican Party no longer tries to compromise, even when the Democrats are willing to give them what they want up front. The Judiciary has always included partisan activists who’ve used flimsy readings of the law and legislators’ intent, in order to “legislate from the bench.” But now judicial activists legislate more often than Congress, and the Executive appoints those judges. So the Republican Party has been stacking the courts with every ideologue they can, following the standard authoritarian playbook, since Trump took office.
…The first reason is the effective blockade Senate Majority Leader Mitch McConnell imposed on appellate court confirmations the moment Republicans took over the Senate. McConnell’s effort to block Supreme Court nominee Merrick Garland is well-known. Less well-known are the many lower court nominees who received similar treatment. Under Trump, McConnell’s turned the Senate into a machine that churns out judicial confirmations and does little else — he’s ignored literally hundreds of bills passed by the House. Under Obama, by contrast, McConnell’s Senate was the place where judicial nominations went to die.
We’re in the midst of a rapid takeover of the highest appeals courts in the country, which have already been gutting basic rights and protections for the average American over the past several years:
Judges, by contrast, have become the most consequential policymakers in the nation. They have gutted America’s campaign finance law and dismantled much of the Voting Rights Act. They have allowed states to deny health coverage to millions of Americans. They’ve held that religion can be wielded as a sword to cut away the rights of others. They’ve drastically watered down the federal ban on sexual harassment. And that barely scratches the surface.
The judiciary is where policy is made in the United States. And that policy is likely to be made by Republican judges for the foreseeable future.
There are likely now five votes on the Supreme Court, for example, to effectively give the judiciary a veto power over all federal regulations. Similarly, the Court’s decision in Burwell v. Hobby Lobby (2014) signals that religious conservatives may now ask the judiciary for an exemption from any law — and courts are likely to become quite generous in passing out such exemptions in the coming years. Republicans spent most of 2017 trying and failing to repeal Obamacare — but that failure means little to a federal appeals court that is expected to strike down the Affordable Care Act any day now.
And that’s not all. In the coming months, the courts are poised to gut abortion rights, eviscerate gun control, and neuter landmark environmental laws. Federal judges have already stripped workers of their ability to assert many of their rights against their employers, and this process is likely to accelerate in the near future. Many of our voting rights lay in tatters, thanks to conservative judicial appointments, and this process is likely to accelerate as well.
We need to break the increasing stranglehold the rich have on every lever of power in this country. This country is turning into a corrupt oligarchy. We need to educate ourselves, and get involved, and as many of us as quickly as possible. A better world is possible when we work together.