The article goes hard after the Roberts Court and the
conservative majority who has made it their mission to move American
jurisprudence to the far right. A move Adelman calls out as “undermining
American democracy.” He begins by pulling the mask off the veneer of
impartiality that John Roberts, in particular, loves to drape himself in:
By now, it is a truism that Chief Justice John Roberts’
statement to the Senate Judiciary Committee that a Supreme Court justice’s role
is the passive one of a neutral baseball “umpire who [merely] calls the balls
and strikes” was a masterpiece of disingenuousness. Roberts’ misleading
testimony inevitably comes to mind when one considers the course of
decision-making by the Court over which he presides. This is so because the
Roberts Court has been anything but passive. 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 in 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.
And that’s the opening paragraph, y’all.
Adelman then traces the jurisprudential influences to show
how the long arc of history has been bent not just to the right, but the far
right under the Roberts Court:
[I]n the last third of the twentieth century in response to
a number of economic and political developments, including the egalitarian
movements of the 1960s, corporations and wealthy conservative donors began to
invest large sums of money in promoting conservative ideas. At the same time, a
conservative legal movement emerged, and it provided the context in which all
of the members of the Roberts Court’s conservative majority came of age. I note
that in conjunction with several other developments, the conservatives’
aggressiveness has contributed to causing economic and political power to
became increasingly concentrated at the top. As a result of this concentration,
government policies have become less and less responsive to the needs of
ordinary Americans. I point out that under these circumstances, it would be
highly desirable to have a Supreme Court that could at least play some role in
righting the ship as the Warren Court did in the 1950s and 1960s when it
addressed such long standing deficiencies of American democracy as segregation,
malapportioned legislative districts, and a brutally unfair criminal justice
system. Rather than counteracting the anti-democratic trends in the country,
however, the Roberts Court reinforces them.
Adelman keeps hitting at the Roberts Court throughout the
article, resulting in this dire warning:
We are thus in a new and arguably dangerous phase in
American history. Democracy is inherently fragile, and it is even more so when
government eschews policies that benefit all classes of Americans. We
desperately need public officials who will work to revitalize our democratic
republic. Unfortunately, the conservative Justices on the Roberts Court are not
among them.
But of course, since it is a federal judge taking a
political stand, there’s a fair amount of handwringing going on about whether it is okay that
Adelman said what he said. But as Dahlia Lithwick and Mark Joseph Stern write for Slate, turnabout is fair play. Conservative
jurists make it a habit to “own the libs” — a trend that has only gotten worse
since Trump appointees have flooded the federal bench — and Adelman’s writing
is no different:
Is it somehow over the ethical line when a progressive judge
puts these observations into writing?
Five years ago, we’d have said yes, it goes too far. Under
any set of ordinary circumstances, it is always better for life-tenured jurists
to stay in their lane, avoid partisan political criticism, and work to preserve
the vitally important norms of judicial independence and nonpartisan, oracular
judicial temperament. But there remains the question—possibly the abiding
question of our time—about whether only one side can remain beholden to norms
when the other has eviscerated them.
Evisceration is not an exaggeration. Judge James Ho, a Trump
appointee to the 5th U.S. Circuit Court of Appeals, has assumed the role of
robed Fox News commentator. He disparages women who get abortions, as well as
judges who uphold their right to do so. He claims that we can stop mass
shootings by shielding police from lawsuits when they accidentally murder
innocent people. He intentionally misgenders transgender litigants—as does his
colleague, Kyle Duncan, a fellow Trump appointee. Another judge on the 5th
Circuit, Edith Brown Clement (a George W. Bush appointee), penned a partisan
attack on her colleagues. And, under the influence of Trump’s judges, the 5th
Circuit as a whole has begun defying Supreme Court precedent in a series of
blatantly political decisions.
There’s something glorious about the clear way Adelman lays
out his argument against the Roberts Court, especially for liberals who’ve
taken so many Ls over the course of the Trump administration. But the real
judge of the validity of Adelman’s arguments will be history.
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