The Only Way to Fix the Federal Courts’ Fundamental Flaw – By Eric Reinhart (Slate) / May 24, 2022
If we care about justice and democracy, the reality of law as a product of political struggle must be popularly embraced rather than repressed.
The federal court system exercises enormous power over Americans’ everyday lives. Its decisions in just the last two decades have determined the outcome of a presidential election, the legality of unregulated corporate influence over elections, the use of torture and executions, the mass detention of migrant children separated from their families, and a wide range of executive decisions affecting both domestic policy and international affairs. Now, the Supreme Court is preparing to overturn the constitutional right to abortion.
The furor over Justice Ruth Bader Ginsburg’s death and replacement prior to the 2020 presidential election reflects the degree of influence that a single court of nine unelected judges exercises over American life and death. Now, as Justice Stephen Breyer prepares to retire and Ketanji Brown Jackson waits to assume her seat on what will remain an overwhelmingly conservative court, a troubling reality is again both incredibly obvious and intensely repressed.
What is this public secret that American society writ large – lawmakers, lawyers, and judges most of all – collectively refuses to acknowledge or address? The entire American legal system, and the supposed democracy it claims to uphold, is predicated on a myth.
Political impartiality and personal disinterestedness are key to the official function of a judge in the American legal system. These values are the basis of legal ethics and the legal system’s claims to legitimacy. Judges themselves repeatedly affirm, and in fact this affirmation is a requirement for assuming a federal judicial position, an exceptional capacity to detach the way that they interpret and judge from all political investments, partisan loyalties, public opinions, and personal concerns. The demands of justice and constitutional procedure alone are to guide judicial behavior, or so the story goes.
