Purge the Courts

I agree with Scott that it’s almost impossible to describe how lawless the 8th circuit ruling on absentee ballots in Minnesota actually is, but I’m going to give it a shot:

(1) The consent decree at issue in the case hasn’t been challenged by anyone in the Minnesota state government! This case doesn’t involve a federal court adjudicating a dispute between elements of state’s legal system regarding the application of state law. The consent decree entered into by the Secretary of State isn’t being challenged by the legislature, which means that every element of the Minnesota legal system: the legislature, the executive (via the Secretary of State), and the courts (via the consent decree) had agreed to change the election rules temporarily, to accept absentee ballots postmarked by election day but received up to a week later.

(2) The Minnesota legislature has expressly delegated to the Secretary of State the power to craft temporary changes to Minnesota election law in precisely this situation — where there’s a court order enjoining the ordinary application of those laws because of exigent circumstances (like a global pandemic). So it’s just a brazen lie to claim, as the two 8th circuit hack judges do, that the Minnesota courts and the Secretary of State’s office are creating rules that as a legal matter have to be created by the legislature. The legislature did create the rule governing this case: explicitly before the fact, via explicit delegation of rule making authority in precisely these circumstances, and by overwhelming implication after the fact, since it isn’t challenging the consent decree!

The way the 8th circuit hacks try to finesse this inconvenient truth is by implying that somehow the litigation here is in some way collusive — that the Secretary of State ginned up this consent decree with the plaintiffs as a way of doing an end run around the legislature’s rule making authority, not as a valid exercise of its lawfully delegated administrative powers. This outrageous implication isn’t supported by a shred of evidence, and in fact all the evidence is overwhelmingly to the contrary (again, the legislature hasn’t challenged the decree!).

(3) The plaintiffs challenging the consent decree don’t come within a mile of having standing under either Minnesota or federal law, so the real collusion here is actually between the national Republican party and the lawless hacks it has managed to embed all over the federal judiciary.

Judicial reform can and should come in many forms: court expansion, term limits, and selective jurisdiction stripping are three of the most obvious. But there’s another weapon at hand, that’s been lying around like a loaded gun for 217 years now, ever since John Marshall crafted his wonderfully circular arguments to prove by geometric logic that federal courts have the ultimate say over what the law in this country actually is.

That weapon is this: There is no reason that government officials should obey flagrantly lawless courts. The doctrine of judicial supremacy promulgated in Marbury v. Madison is just that: a judicially created doctrine, not found in the Constitution, and never formalized via legislation. Like all judicially created doctrines, its justification is normative and prudential, not formal and descriptive.

The strong form of judicial review found in the United States is very unusual in comparative terms: Most developed legal systems feature nothing like it. Claiming that it’s an essential feature of “the rule of law” is a ridiculously parochial argument, based on an ideology of American exceptionalism that is by now completely discredited in the eyes of all rational observers.

Judicial supremacy, in other words, is a doctrine that makes sense under certain historical conditions and not others. Under current conditions — where the federal courts have been taken over by the pliant minions of a lawless anti-democratic minority, which, because it finds itself increasingly unable to win free and fair elections, uses its illicit seizure of those very courts to maintain and extend power — that doctrine needs to be treated explicitly as contingent by those resisting the current ongoing judicial coup.

The federal courts need to be purged legally, via comprehensive judicial reform, and if they lawlessly refuse to accede to those reforms, those lawless orders need to be ignored. Most of all, before we reach that point, those courts need to be reminded that they are rather short on divisions at the moment, and will remain so.

The authority of the courts is earned, continually, not granted by formalistic legal magic. If it ceases to be earned, then it rightfully should disappear — at least until it is earned again, by judges who are servants of the servants of democracy, rather than the lawless tyrants who even now are trying to steal this country from its people.