For a while now, progressive activists have done everything they can to demonize the courts, primarily the Supreme Court given that Trump appointed three justices who, they explain, are partisan hacks determined to do their master’s bidding.
But they’ve cranked up the volume to 11 following the denial of injunctive relief in the Texas SB8 case, which proves to the hysterical that they were right all along. Their outrage had been falling a bit flat up to then because they sky kept not falling. Indeed, the courts had been doing a remarkably good job of being courts until then.
Now, they finally have a weapon to prove that the judiciary is as awful as they’ve been shrieking it is, serving their dual causes, to undermine confidence in the integrity of the judiciary in general, and to justify their bastardization of the judicial branch in reaction to the Trumpian bastardization of the judiciary. The only reason people don’t know how bad the courts are is because the media has been lying about it.
But the unwillingness or inability to engage with the Court as it is, instead of what pundits imagine it to be, quietly carries water for a conservative legal movement that depends for its success on public acceptance of the fantasy of the objective, apolitical judiciary.
The issue isn’t disagreement or disapproval of certain decisions. We all have those, and I’ve disagreed with the Court with unfortunate regularity over the years. But it’s not because the Court in particular, and the judiciary in general, are evil scum. Because if it was, then why bother to be a lawyer, to teach law, to talk about the legal reasoning and analysis. Why go into court to argue a cause if you have no hope of winning because the judges are biased and will rule without regard to the law or your arguments? Who makes a career playing Calvinball?
Many legal podcasts, much like the field itself, trade on the credentials of their hosts: “Strict Scrutiny” is hosted by three law professors who clerked for Supreme Court Justices; “Amicus” is hosted by Dahlia Lithwick, a Stanford Law alumna and award-winning legal journalist. In contrast, the hosts of “5-4” have carefully avoided sharing their C.V.s. Listeners know their first names and a handful of biographical details—Rhiannon is a public defender, Peter has worked at a white-shoe firm, and Michael is a self-described “reformed corporate lawyer”—but that’s pretty much it. Their semi-anonymity has allowed them to be brutally honest, and occasionally profane, without fear of professional repercussions.
Peter has amassed quite a following on twitter under the ‘nym Law Boy, Esq. He’s very snarky. Very lefty. Very obvious. And he plays into the most simplistic and cynical fears of the woke, that everything not left is evil and must be destroyed no matter what. And that includes the law.
Law professors have added the show to their syllabi, and it now brings in twenty-six thousand dollars per month on Patreon. “We used to joke, like, Oh, we’re the most influential leftist legal thinkers,” Peter told me recently. “And then we realized that might actually be true, just because there are so few.” The shortcomings of the commentariat had also become clearer: “Too many people perceive the law as a battle of ideas and not a struggle for power.” (Emphasis added.)
Since the right is bad, the left must be too. Since the Trump-appointed justices and judges are all political actors doing politics and not law, the left most be too. Since the left cannot prevail in a battle of ideas, they must seize power and control of the judiciary so they can impose their law upon a nation as they believe the right is doing. Except when they impose their band of authoritarian control, it will be good because they are good, and they will crush anyone who disagrees.
Peter may believe that too many people, wrongly, perceive the law as a battle of ideas. I do not. I will never walk into a courtroom believing that the fix is in, that I cannot persuade a court to rule in my client’s favor because if I did, then there would be no point to there being a judiciary, a legal system, lawyers. If it’s just a matter of power, then why bother to argue? Why not bring a gun into the courtroom and tell the judge to rule your way or you’ll blow his head off?
I fear that too many people, especially the younger, most simplistic, most hysterical and most passionately authoritarian lawyers, believe as Peter, Law Boy, Esq., does, that it’s just a power game and the only goal is to seize power and crush the opposition under the heel of your righteous boot for all the wokiest of causes.
As has been explained before, the courts are called the Least Dangerous Branch because their only tool is integrity, that the public trusts the judiciary to be sufficiently fair and impartial that they can fulfill their mission as arbiters of disputes under the law. Do these woke lawyers grasp that their “reimagination” of law as a power play means the death of the law and the end of the judicial branch of government.
If there is no winning on ideas, then there is no point in the law. If the fix is in, then the law is dead. And indeed, that’s the goal of progressive lawyers, not to fix the law but to murder it. Fuck that.