Our Courts Are a Growing Threat to Democracy

Our Courts Are a Growing Threat to Democracy

Our Courts Are a Growing Threat to Democracy

The judiciary is reshaping fundamental policies with no concern for what the majority of Americans actually want.


As the impeachment trial in the Senate lumbers toward its GOP-predetermined outcome—listen to the Noise of attorney Alan Dershowitz detailing the legal argument that the president’s reelection is in the national and public interest, and thus that strong-arming the Ukrainians to help him get reelected was legitimate—the calamitous consequences of conservative control over the judiciary are becoming ever clearer. The courts are the true Signal this week.

Despite his role as presiding judge in the impeachment trial, Chief Justice John Roberts found the time to cast his vote as part of the Supreme Court’s conservative majority—a majority cemented into place by a president who was himself elected by a minority of voters and has now been impeached by Congress. That 5-4 vote lifted a series of national injunctions and allowed the administration’s anti-immigrant “public charge” rules to go into effect while lower courts wrestle with the legal arguments around their legitimacy. So much for Roberts being the voice of reason and moderation on a court that is starting to rival Roger Taney’s for sheer awfulness and abrogation of moral decency.

Dozens of states and cities and advocacy groups opposed the changes, and hundreds of thousands of people filed public comments against the new rules. The Supreme Court paid not a whit of attention to their arguments. As a result, hundreds of thousands of immigrants—the exact numbers are unclear—will now be confronted with an unpalatable choice: Either withdraw from all public assistance (food stamps, Medicaid, and so on) or face the prospect that the government will use that assistance as a reason to deny them residency and ultimately deport them.

But the real cost goes far beyond the numbers formally affected. Advocacy groups have been reporting that families are stampeding away from these programs, also withdrawing their children—who are still eligible for benefits—and doing everything in their power to scrub all family involvement with government benefit systems. Huge numbers, perhaps ranging into the millions, will end up hungrier, sicker, more vulnerable to homelessness, and less likely to succeed in navigating their new lives in Trump’s America.

The argument used by Chief Justice Roberts and his four colleagues to allow the new rules to take effect is similar to the one the court used to let the Muslim travel ban proceed after lower courts had blocked it. It’s similar, too, to the court’s argument in letting new rules refusing asylum to those who travel through Mexico en route to the United States take effect while the courts determine the merits.

Further down the federal court system, a panel of the newly reconfigured US Court of Appeals for the Ninth Circuit, with a number of Trump appointees on it, has similarly upheld the “Remain in Mexico” policy, which requires asylum seekers to wait in Mexico while their cases are being heard. Upward of 50,000 Central Americans have already been bottled up in Mexican camps by this ghastly policy. This week, in a little-noticed move, the administration added to that list the thousands of Brazilians, many fleeing Trump’s pal Jair Bolsonaro, who are seeking US asylum.

Meanwhile, at the state level, the Florida Supreme Court, its majority also deeply conservative, ruled that the GOP-led legislature could implement policies undermining the intent of Amendment 4. That ballot initiative, passed by an overwhelming margin in 2018, was intended to re-enfranchise some 1 million felons who had completed their prison, probation, and parole sentences. Now, as a result of legislation state politicians passed last spring to dilute its impact, felons have to pay off all fees associated with their original sentence—including fees converted by judges into civil rather than criminal penalties—before their right to vote can be restored. Hundreds of thousands of economically struggling ex-felons will thus remain voteless despite the clear intent of their fellow Floridians.

All in a week’s work for a conservative judiciary that is increasingly reshaping fundamental policies and regulatory systems with no concern for what the majority of Americans actually want.

If anyone needed reminding, this week’s farcical Senate proceedings under McConnell’s no-witness rules, combined with increasingly reactionary court decisions, ought to stand as stark warning that those in power don’t represent a government of, by, and for the people. This is minoritarian rule at its most finely tuned, and it’s getting worse with each voter purge and each court ruling.

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