The circus comes for the courts – Regulation & Liberty
Just before the rioters broke into the Capitol last week, Senator Ted Cruz told his Senate colleagues that a unified vote to reject votes would “astonish viewers”.
Rarely have our elected officials been so honest about their motivations, but long before the Capitol’s “monstrous tragicomic scene” (to use Burke’s words) it had become clear that two of the three branches of federal government had turned to little more than a circus show. Floor debates, confirmation hearings, speeches in the rose garden, and daily press conferences are nothing more than performance art designed to “amaze” a narrow, usually partisan audience. Social media and cable talking heads have turned chosen institutions into megaphones that they can use to demonstrate the right loyalties, pick the right fights, and effectively fake the right kind of outrage.
This was what Cruz and the other Trump loyalists did on Jan. 6, and we saw how real and dangerous the consequences of such a theater can be.
The third branch has, of course, had problems in the last few decades. However, the judiciary has largely avoided the particular corruption of the other two branches. Judges and judges are the only members of the federal government whose primary role continues to require serious, high-level reflection. They are unable to answer questions that most of the time bore the average person.
In addition, post-election litigation has spectacularly upheld the judiciary. For months, the left boldly and relentlessly predicted that voters would reject Trump but the president would spark frivolous legal battles to cast votes and steal the elections. His hand-picked judges and judges, who crowned his presidency, would loyally support their patrons and put an end to American self-government.
Trump, of course, has exceeded expectations when it comes to his role in this dystopian fantasy. But the courts have not turned a blind eye, obeyed the law and proven that conservative jurisprudence – in contrast to much conservative campaign rhetoric – is not just a party-political hacker.
However, this ongoing episode should be a warning that the particular type of dysfunction affecting the other branches of government is on its way to justice.
The left has already tried to force the court into the games played by our politicians by suggesting the possibility of court wrapping and even writing partisan threats in an amicus letter in 2019. The election battle shows that the right is more than happy to pull the court down courts too.
The briefs and affidavits Trump allies filed in the judicial battle were exactly the kind of idle performances that marred the other two branches. You should never make real legal arguments (just like no Senate confirmation hearing really tries to assess a candidate’s relevant qualifications). Rather, they should get messages across to a political audience in hopes of controlling the narrative of the election results. As such, they used fantastically flawed statistical projections, data taken from the wrong state, and all-around fabricated claims about dead or ineligible voters. One lawsuit in Wisconsin even attempted to issue a subpoena against the electoral college. The people bringing these cases probably knew that no court would take such claims seriously, but the court was not their actual audience. A few weeks before his Senate speech, Cruz offered to “surprise the audience” by arguing Texas v Pennsylvania in the Supreme Court. Had disputes ever taken place, they would have demonstrated his political, not legal, expertise.
With many GOP personalities expressing more open party political expectations of federal judges, it is only a matter of time before such expectations are reflected in election promises.
As a sign that the Supreme Court is being incorporated into the mind-boggling narratives that run the rest of our politics, conspiracy theories began to fly after he refused to hear a Texas lawsuit against the Pennsylvania election process. Although the judges have not worked in the Supreme Court building in months, reliable Twitter sources claimed that Chief Justice John Roberts was “overheard” bullying judges filing at conferences. Roberts also phoned Justice Breyer to plan how Trump can be overthrown. And of course he also went on vacation to Epstein’s island. No serious person believes these stories, but dubious people – and those who would manipulate them – are not without significant influence on our politics. Experts and public figures on the right are already presenting the court as a compromised entity, even if they are on the verge of the most imaginative stories, and Trump has beaten the judges for their infidelity at the DC rally.
In times of demagogy, judges and judges who do their jobs by applying the law neutrally are perfect targets. This is a highly educated and recognized elite whose job it is to deal with common technical issues that most people do not understand. Such a group fits perfectly with the needs of the populist impulses that now dominate the GOP. Obscure procedural rules like standing or laughing can easily be presented as mere technical details – excuses used to cover up corruption. Judges can thereby be portrayed as part of the swamp elite, ready to either use their power to pursue their own ends or simply to prevent the unfortunate from disrupting their comfortable status quo. Portraying the courts in this way serves both to create a slide for the grand bleachers and to undermine public confidence in the rule of law, which is always a formidable barrier to male drafting ambitions.
Looking ahead, another (otherwise harmless) innovation from the Trump years could help fuel this trend. In 2016, then-candidate Trump, with the help of the Federalist Society, published a curated list of potential candidates for the Supreme Court amid many conservatives fear that a reality show host would appoint judges above his head. This tactic has been widely praised on the right, even by some who are critical of Trump on many other issues. The use of the list provided additional control and refinement of the judicial selection and was used to clarify the judicial consequences of elections. Given the regularity with which Republican candidates for the court had migrated to the left, some degree of outsourcing to a group devoted to originalist and textualist jurisprudence was a smart move.
But if Republican candidates, as it seems likely, make such lists a firmly entrenched expectation, they can create perverse incentives for both judges and presidents in the future. The use of these lists makes the nomination choice a more public matter. This was good when it allowed a group like the Federalist Society, an association genuinely interested in promoting sound justice, to lead the election of a political amateur. However, the continued influence of such organizations cannot be taken for granted. With many GOP personalities expressing more open party political expectations of federal judges, it is only a matter of time before such expectations are reflected in election promises. In fact, the latest iteration of Trump’s Supreme Court list included loyal partisan thugs like Sens. Cruz and Tom Cotton.
Trust in an established association of elites is no longer the modus operandi of the Republican Party. Finally, the judges of the Federal Society have just betrayed President Trump. Given that many seem ready to use the judiciary for the most outrageous political ends, the use of the campaign list could be the most prominent of the many possible ways to get the courts fully caught up in our politics. What could go better in a GOP elementary school than the promise to nominate a proven culture warrior for the bank?
And lest there be hope that the violence in the Capitol will help restore a sense of dignity and duty to officials, after order was restored, 147 Republicans still chose to use their votes to fuel electoral conspiracy theories. As long as it works, the trend will continue.
The courts are a few degrees away from these stormy political winds, and they have only proven that the left’s horrific predictions of a coup d’état are completely unfounded. But they are not entirely isolated. While Lin Wood-style screeds are unlikely to be reflected in legal opinions anytime soon, the 2020-21 election fiasco should be a warning: the circus is coming to town.