Sunday, May 24th, 2020

I remember reading Bob Woodward’s 1979 book about the backstage doings at the United States Supreme Court and coming away sufficiently sanguine about their willingness to do the judicial work: to examine a case brought before them on its merits and in the light of precedent, and to listen to and be persuaded (intellectually, not ideologically) about their legal argument.

I came away thinking that all the way down through the Federal Court system, this sort of rigor prevailed, and that the appeals process was there for when a lower judge made a mistake, literally a legal faux pas, and the misstep needed thus to be corrected.

They were there to interpret and examine the laws passed by the legislative branch, and that’s all.

This was a long time ago—heck, the title of the book was “The Brethren,” so you know that it preceded Justices Ginsburg, Kagan, Sotomayor, and O’Connor—but I look now at the seemingly impenetrable political overlay welded into our nation’s judicial system by the relentless work of Senate Majority Leader Mitch McConnell and the Trump administration and I really miss the idea that the courts once built precedent on laws, fairness and it was meant to last, and not merely be overturned by underprepared lower court judges nonetheless appointed to lifetime positions and carrying their political chips very visibly on their robed shoulders.

I was just thinking about this because the work of the ACLU and others won one this evening. In Florida, where voters passed a constitutional amendment restoring voting rights to thousands of ex-felons, US District Court Judge Hinkle ruled that a follow-up law passed by the GOP-led Florida Legislature and signed by Governor DeSantis was unconstitutional because “the State of Florida has adopted a system under which nearly a million otherwise-eligible citizens can vote only if they pay an amount of money. … Many do not know, and some may not be able to find out, how much they must pay.” (It’s really a mess.)

But yeah, the Governor could still appeal. And appellate courts could be run by judges who treat a matter of law like a matter of my team versus theirs.

In a just world, I’d be sanguine about the process. Nowadays, I just hold my breath.