Terry H. Schwadron
Nov. 15, 2021
Those tragic crowd stampede deaths from an outdoor Houston concert took only a weekend to spawn the first lawsuits. The new Texas abortion law took under a week for a court challenge. The White House call for vaccine mandates has not even taken effect as state attorneys general have filed for suspension of the order in federal court.
We can’t solve problems, so it seems as if everything with even a hint of controversy is landing in one court or another.
Indeed, as if in active denial of recent public remarks by multiple Supreme Court justices, it’s even apparent that there is a whole lot of court-shopping going on for the best court in which to make blatantly political argument.
Whether to enforce a congressional subpoena now is a court case (or several). Deciding on public health is a matter for judges suddenly rather than for doctors.
We’re seeing policing cases involving almost competing court filings in federal and state courts, we’re seeing federal civil rights case investigations when local district attorneys do or do not make prosecution decisions.
We’re seeing more groups talking openly and brazenly about finding a lawsuit to ride as a vehicle for pursuing a court judgment on almost strictly political grounds to advance or squash abortion rights, to loosen or preserve gun use, to settle immigration policies that can’t be resolved in our split and divided Congress.
Increasingly we are surrendering democracy itself to court process to resolve what we should be able to hash out as public policy.
Caseloads at the federal courts are increasing. Civil filings in federal district courts in the last year went up by 16%, and criminal cases increased by 4%. Even criminal cases grew by 3% over the previous yearly March reporting period. The number of appeals cases are up by 5% as well.
Inside those numbers, it is easy to see lots more immigration cases, environmental issues, prison sentencing appeals, and challenges over what we generally expect to be resolved in our legislative arenas.
Judges, lawyers, and legal organization have noticed, and public defender groups say they are overwhelmed. But so do immigration judges and civil rights groups.
Some of this is because we are an increasingly litigious society, insisting that someone needs to pay for our discomfort or loss. The bar for filing lawsuits is low enough to allow lots of litigation, so long as one can pay for it.
But what interests me here is that the byproduct of our National Divide is to send all its dirty (or unresolvable) laundry to the courts. Depending on which court gets the case, the first thing one side or the other does is check out who appointed the federal judge to his job, as a determinant in where to take the case — out of increasing belief that there is not a single judicial view of law in this country, but views affected by partisanship.
For whatever reason, a court in Maine may uphold the right of the state to order vaccines and weekly covid testing, whereas a court in Texas won’t, setting up the almost endless cycles of appeal all the way to a divided U.S. Supreme Court.
In various recent public remarks Justices Amy Coney Barrett essentially defended the Court justices, saying that it is wrong to look at them as “political hacks” who go into cases with predisposed political ideas. In separate speeches, Justices Stephen Breyer defended the current Court construction, and Justice Samuel Alito offered acerbic critiques on how the media portrays Court decisions.
What’s a Win?
Nevertheless, it is not enough to win a legislative vote these days or to conclude that we need a presidential order. We’ve already seen the filing of lawsuit from, Republican states’ attorneys general to resolve that may take weeks or months — as the pandemic itself drags on.
It is just as clear that more and more judges have made it to the bench as the result of highly political partisanship, amid all the wink-wink nomination testimony about keeping an open view and a respect for precedent on contentious issues about abortion, religion, guns, and climate. If we could believe those nomination speeches, we wouldn’t be looking at a Court on the brink of overturning 50 years of legal abortions.
The Courts have almost replaced Congress, which is weird, among other reasons, because they keep their legal blinders in place as they settle often on the most narrow definition of the problem at hand without looking at societal impact. It’s also weird because they saw that making law — a necessary outcome of their increasing number of deliberations on specific public policy issues — is not their job.
Recognizing the trend, the Department of Justice and even state prosecutors are thinking twice about how to handle their business.
Delayed enforcement action in pursuing a congressional subpoena for Donald Trump adviser Stephen Bannon — he now has been indicted by a federal grand jury — for refusing to show before the Jan. 6 Select Committee has drawn a boatload of criticisms from both sides of the divide over perceived partisanship. Indeed, Republican congress members already are threatening to pursue criminal charges against Democrats in revenge once they retake Congress.
Taken together, the increasing reliance on Court resolution for every problem seems an indictment of American refusal to accept the outcome of an election, an accident, or a civil rights violation, and finding a way to make the parties whole again in its aftermath,