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Unbalanced Justice


The image of justice is a blindfolded woman holding a scale. The implication is that justice is blind to partisan influence and will weigh its decisions based upon the law and not political bias. Those days are long gone. It has been replaced by judges who will push a partisan/faith-based agenda that has nothing to do with upholding the law or defending the Constitution.


The most common defense of their actions is to claim government overreach. It’s a tactic sure to please those on the right who see the federal government somehow being manipulated by a “deep state” that is out to warp the minds of our children, murder innocent babies, take away your guns and steal elections from their chosen ones.


The courts, in particular the Supreme Court, are supposed to be a check on the other branches of government. As an equal branch of the federal government, it’s supposed to prevent the other two branches, the legislative and executive ones, from doing things that are contrary to the Constitution. Instead, we have a biased court that is making its decisions not on the Constitution, but on the political whims of those who elevated them to the bench.


Healthcare/Abortion Rights

In 2028 a federal judge from the deeply red state of Texas ruled that Obamacare was unconstitutional. (The decision was later overturned). Yeah, it is illegal to provide healthcare to the poor because it would cut into the profits of insurance companies. This of course elicited cheers from those on the right who hated the legislation simply because it was a Democratic initiative. Since the law’s inception, there have been countless challenges and empty promises to replace it with “something better”.


Like Infrastructure Week, something Democrats passed in the first months of the Biden administration, it never happened.


Thus far the Supreme Court has resisted efforts to overturn Obamacare, but with its current 6-3 majority, it’s more than likely the challenges will persist. A likely avenue is how states are doing an end-around of the Hyde Amendment, which prohibits federal dollars from being used for abortion. States are free to cover these services if they so choose, however some might try to challenge this as going against the spirit of this law.

For years, Republicans have been trying to overturn Roe v Wade since it was written into law. Now, Republican-led states are enacting laws that will essentially ban all abortions. These will certainly be challenged in the Supreme Court, but the right-leaning make-up of the current set of justices will likely doom challenges to these laws.


During their confirmation hearings, each of the current members of the Supreme Court declined to take a stance on whether or not they supported abortion rights. Justice Brett Kavanaugh went as far as to declare that Roe is “settled law”, which allowed him to obtain Sen. Susan Collins’ (R-ME) necessary vote. Since then, Kavanaugh has voted against protecting a woman’s right to choose and will likely support the state’s’ decisions.


Clarence Thomas has ruled that “Roe is grievously wrong”, while Amy Coney Barrett, who is on record as being anti-abortion, partly due to her association with a religious cult, claims she would separate her personal views from her duty (Yeah, fat chance that’ll happen!). With Samuel Alito joining the anti-abortion mix, it would be difficult for the current make-up of the court to accept any challenge to the abortion restrictions being applied in many red states.


No doubt, they would hide behind the claim of “states rights” or some other technicality to avoid tackling the issue. This will effectively end LEGAL abortion in many states.


Elections

When the Supreme Court declined to hear a challenge to the 2020 election results, it used the excuse that the plaintiff, namely the State of Texas, along with 18 state attorneys general and 106 Republican members of Congress, lacked standing to challenge the election results of another state, in this case the Commonwealth of Pennsylvania. Stating simply, “The application for injunctive relief presented to Justice Alito and by him referred to the Court is denied”. It effectively put an end to any legal challenges to President Biden’s election.


That would be true if it stopped right there. Instead of ending the battle, the conservative justices essentially drew a road map to give Republicans a a path to overturning election results in the future. Indeed three of them, Justices Samuel Alito, Clarence Thomas and Neil Gorsuch, would later state that they would have taken up the issue if they saw such a path in 2020. So, they offered this alternative stating, “A decision in these cases would not have implications regarding the 2020 election…But a decision would provide invaluable guidance for future elections.”


This could be taken to mean, if you don’t like the election results, change the process, thereby inviting the states to alter election laws to their advantage, which several Republican-led states did, either through more restrictive voting regulations or partisan gerrymandering.


In taking up the Pennsylvania challenge, their State Court of Appeals asserted, “Voters, not lawyers, choose the president”. Despite this, Republicans took up the contrary rallying cry, “The vote counter is more important than the candidate". Republicans have put forth several candidates who could be influential in determining election results in the future.


At the Supreme Court’s suggestion, Republicans have indeed made it easier to overturn election results if there is a dispute during the 2024 presidential election.


The Shadow Docket

Supreme Court cases are traditionally decided after briefs are presented and oral arguments heard. Both sides are usually given 30 minutes to present their sides, then the justices retire to consider the merits of each. A decision is typically rendered in two weeks, after the justices have considered the Constitutionality of the case and what other precedents have been made by previous courts.


And then, there is the shadow docket. This is when the court makes a decision without the preceding process. While this has been a part of court operations for centuries, it has been criticized for its recent moves where there have been an increasing number of cases, such as Donald Trump’s travel ban that have been decided this way.


Indeed, in 2017, the number of cases decided through the shadow docket increased to 11, compared to only three from the previous year. So, during the first year of the Trump administration, the court used this process far more extensively, calling into question what they may be hiding. The process continued throughout Trump’s tenure, with a total of 28 shadow docket decisions being issued. Compare that to the fact only four decisions were rendered via the shadow docket during the combined administrations of George W. Bush and Barack Obama.


While the shadow docket has been a tool of the Supreme Court since 1790, it wasn’t until 2015 that University of Chicago law professor William Baude coined the term in a law review article.


Justice Samuel Alito called the term “false and inflammatory”, citing it gives the appearance of some dangerous cabal making decisions in secret. Not coincidentally, he made these comments after the decision was made to uphold the Texas Abortion Law via the shadow docket.


George Mason University law professor Iliya Somin asserted, “The shadow docket is being used more than before, and some liberal commentators argue that the court’s shadow docket decisions are often badly flawed and/or serve a Conservative agenda.”


So, while the Supreme Court is supposed to be non-partisan, its recent moves have been to support a more authoritarian Executive branch that would heavily favor Republicans.


So much for checks and balances.


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4 Kommentare


Mark M. Bello
Mark M. Bello
25. Apr. 2022

Elections have consequences. Our citizens chose an ethically challenged, sexual abuser as POTUS and the country got a right-wing 6-3 SCOTUS majority in return. Justice is in for a rough several years—fasten your seat belts.

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Seatbelts are fastened!

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Bob Gatty
Bob Gatty
25. Apr. 2022

Excellent commentary. Trump's packing of the federal judiciary with right-wing loyalists is, indeed, scary for the future.

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It is indeed scary for the future and there is no relief in sight and so many are more than right-wing loyalists-they are, in my opinion, extremely radical and incredibly close minded-to an extent I cannot comprehend.

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