Trump Vs The Judges: Judicial Treachery & The End Of Democracy

Authored by Stephen Soukup via American Greatness,

Democracy dies in darkness… or so the Trump-era Washington Post would have us believe. That’s a nice-sounding sentiment (and one that should have applied to the paper and its reporting long before Donald Trump arrived in the White House), but it’s also trite and naïve. It is far closer to the truth to say that democracy dies out in the open, in the daylight, right in front of our faces, and with the approval of most of the people working at The Washington Post. In reality, democracy dies in the courtrooms and judges’ quarters of our nation.

As the Trump Administration is thwarted in its efforts to cut federal spending, bloat, and waste time and again by activist judges, the people of the country must understand what is going on and what it likely says about the nation’s future. These judges—most of whom were appointed by Democratic presidents Clinton, Obama, and Biden—have taken it upon themselves to make policy and to engage in political maneuvering to spare the political status quo the fate for which the American people voted last November. 

Unironically and unapologetically, they are undoing the will of demos, purportedly to save democracy.

Interestingly, the Democrats who cheer the activist judges and their rulings are open and unremorseful about their overt injection of politics into the system of judicial review. Chuck Schumer, the Senate Minority Leader, crowed to PBS “Newshour” this week that he and his fellow Democrats are responsible for “saving democracy” because they intentionally packed the courts with judges that shared their ideology and would be unafraid to apply it to any case involving President Trump. “We did put 235 judges, 235 progressive judges, judges not under the control of Trump, last year on the bench, and they are ruling against Trump time after time after time.”

As justification for their use of the courts to stymie the will of the democratically elected administration, the Democrats (naturally) cite Marbury v. Madison, in which every schoolboy (and girl) used to be taught strengthened the concept of judicial review and established the courts as a proper constitutional check on the executive and legislative branches. The catch here is that Marbury v. Madison was decided on procedural, constitutional grounds, thereby intentionally sidestepping the contentious politics of the case. More to the point, the ruling purposefully constrained the ability of elected officials to use the courts as vehicles for their political gambits, even as it also reined in the Supreme Court itself, arguing that its actions in defense of politically stacking the judiciary were unconstitutional.

Rather than relying on the words of Chief Justice John Marshall, the Democrats and all those who cheer their judicial strategy would do far better to read the words and heed the warnings of Carl Schmitt, the brilliant and rightly famous Weimar-era German jurist who became a rightly infamous Nazi-era German jurist, the “crown jurist” of the Third Reich.

I have written a great deal about Schmitt over the last several years—including in these pages—largely because he was among the most prescient of the West’s philosophers of the early Twentieth century. Long before he became a Nazi, Schmitt warned about the tendency of liberal democracy to make everything, every question or concern about contemporary life into a political matter. Schmitt observed that in traditional European societies (and America as well), the state had only to deal with matters such as land, trade, finances, and family ties. Enemies of the social order were generally recognized by everyone as evil and were han­dled by communal agreement on what was commonly understood to be what was right, or moral, or in line with universally recognized truths. In the liberal democratic state, by contrast, everything had become political and subject to dispute, which led to continuous contro­versies and turmoil surrounding all aspects of social life.

Schmitt most fully articulated his theories on the politicization of everything and the subsequent creation of “the total state” in his 1932 classic The Concept of the Political. Even before this, however, Schmitt identified universal politicization—and politicization of the judiciary, in particular—as the preeminent threat to democratic polities. Schmitt fervently disdained the idea that the judiciary could or should behave in a political manner or pursue political ends. Doing so, he argued, would corrupt the judiciary beyond repair and, in the end, destroy democracy completely. Schmitt rejected out of hand the very notion that the courts could create or enforce political positions that were ultimately unreviewable and unamendable by the people and their elected representatives. Such a doctrine would, he argued, render the people powerless.

Schmitt argued that judicial decisions must be made in deference to the “principle of legal determination,” which is to say that they must be made in accordance with the law as written, disregarding the moral or political intentions of its authors. Political and moral calculations are not roles of the judiciary.

For Schmitt, a legal decision was correct if “it can be assumed that another judge would have decided in the same way.” Note, he doesn’t say “another judge appointed by the same president” or “another progressive judge.” He is explicit in arguing that judges’ political sentiments should not play a role in their decisions. If they do, then they are, in the narrow sense, invalid rulings and, in the broader sense, a key cog in the creation of the total state.

As for why anyone should pay attention to Carl Schmitt, given his eventual lapse into totalitarian madness, two reasons stand out among the rest. 

First, as I noted above, he was prescient. His observations about politicization and the rise of the total state have been eerily accurate. He saw the flaws in post-Enlightenment liberal democracy which few others did.

Second, as I note in The Dictatorship of Woke Capital, Schmitt was “what one might call a ‘case in point.” Schmitt predicted the fate of man in the total state, and then he lived it. “Carl Schmitt was a living, breathing oxymoron. He grew frustrated with and tired of trying to rationalize the inefficiencies and ineffective­ness of the Weimar Republic, and so he chose to pledge his allegiance to those who would restore order.”

The erosion of the apolitical judiciary has been underway for some time—better than half a century. For most of those last fifty years, however, judges at least felt the need to fake it, to justify their decisions in constitutional, apolitical terms. That’s not necessarily the case today. Judges are openly thwarting their political opponents based on politics alone, and they’re doing so to the cheers of elected officials and others who somehow still have the gall to call themselves “defenders of democracy.” They are, of course, nothing of the sort. They are quite the opposite, in fact.