Federal judge Reed O’Connor, a gift to America from George W. Bush, is always a good bet to rule against Democratic policies. Right-wing lawyers seek him out for just this purpose. When this happened today, therefore, it shouldn’t have been a surprise:
A federal judge in Texas on Wednesday ruled that the government cannot require a Christian-owned company to cover HIV preventative medication because it violates their religious rights under federal law.
HIV PrEP — which is more than 90% effective in preventing the transmission of HIV — is recommended for adults who are at high risk of getting HIV, which includes [but is not limited to] men who have sex with other men.
The plaintiffs in the case — six individuals and two Christian-owned businesses, Braidwood Management and Kelley Orthodontics — had argued that they should not be mandated to offer coverage of HIV PrEP because they did not want to encourage “homosexual behavior.”
Earlier this week, of course, Judge Aileen Cannon, a gift from the previous president, broke new legal ground by interfering with a criminal investigation of a private citizen (i.e. the previous president) because being investigated for theft of highly sensitive government documents could hurt this private citizen’s reputation.
It isn’t enough to simply point out how bad — actually, how illegal — decisions like these are. Two writers for Slate have a much better idea:
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.
If there were a principle that best embodies why progressives are losing ground so quickly—even as they are correct on the facts, and the law, and the zeitgeist—it must be this tendency to just keep on lawyering the other side’s bad law in the hopes that the lawyering itself will make all the bad faith and crooked law go away. But for those who are genuinely worried that democracy will rise or fall based on whether a case lands before [Republican] judges, merely explaining legal flaws in pointillist detail isn’t an answer. And soberly explaining that Cannon was wrong about most stuff but correct about two things is decidedly not an answer, either. You do not, under any circumstances, have to hand it to them.
It is not a stand-alone answer to point out that Cannon was a T____ pick—a member of the extremely not-neutral Federalist Society, seated after T____ lost the election—or that the former president’s lawyers forum-shopped in order to get this case in front of her. It also doesn’t help to note that Cannon herself acknowledged the proper venue to adjudicate the executive privilege claims made in this case (which are on their face absurd) is in fact in a different court in [the District of Columbia] where Cannon has no jurisdiction and where T____ did not make his case. Nor is it an answer to note that federal judges have literally no constitutional authority to stop an ongoing criminal investigation in its tracks, as Cannon purported to do, rendering her decision an imperious assault on the separation of powers. That, too, is an accurate description of the problem. Stating that, too, is not a solution.
Until and unless those of us who are shocked and horrified at lawless rulings by lawless [right-wing] judges are prepared to propose structural solutions, the aggregated effect of criticizing their rulings won’t be to restore the rule of law or even to restore public confidence in the rule of law. The aggregated effect will be just to confirm that we will all be living under the thumb of [these] lifetime-appointed hacks for many decades.
There are solutions out there for the problem of runaway judges. 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 [D____ T____]) often face years long 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 T____ism [and others]. 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.
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.)
But the chorus from the left, the middle, and the sane right that the lawlessness is lawless only affirms that we cannot ever escape this closed loop of [renegade] judges. Being really mad but doing nothing to change things is a terrible strategy for democracy and for public confidence in the courts. It creates the illusion that if we work really hard to debunk corrupt rulings, we can force [these] judges to see the light, or feel shame, or do something different. Meanwhile, the targets of our meticulous takedowns laugh at the pains we take to prove them wrong. They. Do. Not. Care.
We get it. Lawyers are trained to lawyer. But if you are lawyering within a system you believe to be broken, or immoral, or lawless, and you aren’t standing up with meaningful fixes for that system, you are, fundamentally, acceding to that lawlessness. It is a moral victory to point out the errors, but it’s also a tacit concession that the system is, in fact, legitimate, no matter how low it may go…..
There are too many things wrong with the Cannon order to litigate. And there are too many things wrong with [the right’s] judicial dominion of every part of our lives— for years to come—to litigate. So maybe it’s time to stop litigating them and start fixing them.