Those of you who are reeling from the election loss and the potential theft of more congressional seats in the election “postgame show” should take heart in the fact that elections evidently don’t matter. Nor do the branches of government that are determined by elections seem to matter; namely, the states, Congress, and the president do not matter. We have one branch of government controlled by the unaccountable legal profession, and it not only determines the outcome of every broad policy issue but the outcome of elections themselves.
Imagine if someone concocted a system whereby any one of the 535 senators or congressmen can unilaterally decide a broad public policy issue or direction of the country at any moment. Moreover, that the determination over which one of those members could unilaterally rule and the rules of construction governing the precedent and proceedings of such tribunals were set by an insular profession, say, Hollywood Thus, Hollywood can concoct a scheme to tee up tribunal outcomes of every policy issue before incoming Reps. Alexandria Ocasio-Cortez or Ilhan Omar and have that deemed as “the law of the land.”
If this sounds like a despotic scheme more corrupt than North Korea, it’s actually more democratic than the corrupt system our political elites now use to subvert our constitutional republic. At least under this hypothetical scheme, voters could still remove the tribunal via the ballot box. Under the one-directional progressive scheme of court-shopping judicial supremacy controlled by the legal profession, there are no elections.
There is no low to which the lower courts won’t go
Let’s review some of the recent news from the courts.
Yesterday, the Ninth Circuit Court of Appeals upheld a district judge’s opinion that not only can a president violate American sovereignty and immigration law by unilaterally making legal permanent residents out of those here illegally and offering them Social Security cards and refundable tax cuts, but a new president must follow that edict instead of our statutes. While the Supreme Court will likely take it up soon and overturn this decision, it has repeatedly rebuffed requests to do so in a timely fashion, even though this is sheer lunacy. If a lower court issued an insane opinion on the Right, such as mandating that a president pays for everyone to buy a gun, you better believe SCOTUS wouldn’t wait a full year to let this program continue. This is one of the many examples of why a conservative Supreme Court will not help us.
The rules of the judicial supremacy game set forth by the legal profession dictate that a lower court can always be more progressive than existing Supreme Court precedent, statute, and the Constitution, but can never test the limits of liberal Supreme Court precedent. This is why the lower courts keep coming back for more, even after the Supreme Court finally takes up the case and reverses the opinion. We saw this with Trump v. Hawaii and the president’s power to exclude aliens. Despite the categorical opinion of the court, several lower courts have ignored the decision in a number of immigration cases and are continuing to challenge our sovereignty, 130 years of the most settled plenary power doctrine in the court system, and the plain meaning of the statute. Heck, some of these judges are overturning immigration statute itself for the first time in American history. They have said laws against sanctuary cities are invalid. They have said you can’t deport an illegal alien who is an “immigration rights activist” or a “pizza delivery man.” And by the way, the pizza delivery man was arrested for beating his wife just weeks after ICE absurdly released him after listening to this illegal court order. He is still in the country because a district judge said he doesn’t believe in deportations, and the other branches are stupid enough to listen.
This won’t end. If you think the radical district judges in California, New York, and the Ninth Circuit won’t grant an order to allow the caravan to invade our border, you aren’t paying attention. The Supreme Court only hears a few of these cases, and even when it does, the lower courts turn around and continue to violate the principle of the decision and the rules of standing by finding one tiny difference in the facts of the case. We have seen this continuously with lower court injunctions against public prayer, even after the Supreme Court ruled properly. Yet only Thomas and Gorsuch agreed to take up the appeal.
Then there is the global warming lawsuit. In a decision that rivals only the DACA case in terms of sheer insanity, Oregon District Judge Ann Aiken gave standing to teenagers to sue the weather. The judge is putting the climate and the government on trial and demanding that DOJ present evidence debunking global warming, or she’ll side with the kids to order the government to turn down God’s thermostat, aka shut down capitalism. This lawsuit violates every legal norm and rule of standing for a court, but the Ninth Circuit, of course, has rebuffed any attempt to stop this lawsuit.
What about SCOTUS? Once again, it is continuing to allow this insanity to stand rather than rip it out at its roots. Only Justices Thomas and Gorsuch would have granted the emergency motion to the government. The rest absurdly contended that “adequate relief may be available in the United States Court of Appeals for the Ninth Circuit.”
Then there is the Keystone Pipeline. Construction of the pipeline is one of the few good domestic policy victories we achieved out of this presidency, thanks to a comatose Republican Congress. Now, a district judge has unilaterally halted its construction. Judge Brian Morris of Montana said Trump didn’t offer sufficient justification for changing Obama’s decision to halt the pipeline!
In August, I compiled a list of 13 times courts said Trump must continue Obama’s discretionary or lawless executive actions. I could add at least another 13 to that list.
Judicial supremacism is ensuring that only Democrats win elections
Finally, there is election law itself. The Constitution gives states full authority to set the time, methods, and procedures of elections. Only Congress, not the federal courts, can get involved in extenuating circumstances. Yet, we have allowed federal judges to control every process of election law. There are dozens of very close races and we are now seeing that Democrats win all of them based on provisional and certain types of mail-in ballots that are problematic and often, pursuant to state law, are downright invalid. Yet the federal courts, from Georgia and North Carolina to Ohio, have forced election officials to violate state laws and count these ballots.
They are literally determining the outcome of elections. They are mandating all forms of early voting, registration and voting anomalies, voting without photo ID, and blocking all forms of regulations to clamp down on non-citizens voting, fraud, and incompetence in the electoral process. What you are seeing play out this week in all these states, with Democrats overturning election results, is due to courts having blocked states from fixing these problems for years. There’s no greater form of voter suppression than voter fraud, yet the federal courts have codified the Democrats’ insidious racial agenda into the Constitution and statutes and have ensured that any effort to conduct free and fair elections will be legally deemed racist.
What about the Supreme Court? Ironically, we haven’t lost an election law case in years. In fact, we’ve won every photo ID case and achieved a landmark victory just a few months ago in the case of Ohio’s secretary of state using the lawful procedures of the motor-voter law to clean the state’s rolls of dead voters. Yet just weeks before the election, the Sixth Circuit, which is not even one of the worst panels, came back for more and issued another injunction on Ohio’s law!
Conservatives who think that we can accede to this game of judicial supremacy but are putting faith into a “conservative” Supreme Court and Trump’s lower court picks are missing a number of points:
1) Before Trump, there was a supermajority of leftists on the lower courts thanks to Democrats batting .1000 and Republicans picking leftists half the time. Thus, even with Trump filling vacancies at a rapid pace, it’s not making a dent in most circuits, most of the vacancies are the best conservative judges retiring, and Democrats only need a few avenues to forum-shop and shut down our Constitution. Their biggest avenues, the Ninth, Fourth, and D.C. circuits, are gone for a lifetime.
2) The legal profession controls the “culture” of the court system and the arc of litigation. That will not change.
3) The Supreme Court is not categorically ripping out this judicial cancer, and even when it tries, the Left comes back for more. Death by one thousand lawsuits.
4) John Roberts and several of the other conservatives are being extra careful not to appear “political” and are doing everything they can to avoid overturning bad lower court cases.
If conservatives think they could walk blindly into the legal profession’s haunted house of judicial supremacy and win, they are seriously not paying attention. There is only one rule of engagement for progressives in the judicial casino they created: “We win, you lose.” For 60 years, the Supreme Court was the primary organ for their social transformation without representation. Now that they achieved all they needed to set the baseline precedents on the 14th Amendment and rules of standing (precedent that the conservative legal eagles have agreed to), they no longer need a Supreme Court. They can expand on the 60-year baseline with forum-shopped lower courts buttressed by the ACLU, NAACP, National Immigrant Law Center, and the law schools themselves.
The answer to this is to stop acceding to judicial supremacy. As I’ve explained ad nauseam, when courts grant standing to a straw-man plaintiff to decide a broadly consequential political question, the other branches of government have equal authority and greater power to push back. And in fact, when they know the courts are wrong, they have an obligation to interpret the Constitution properly. See my articles here, here, here, and here and listen to my podcasts here, here, here, and here.
Until or unless the issue of judicial supremacism is brought to a fight, no other issue, including elections, matters.
Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.