Is there a reason why we should be concerned about the federal court system these days? Perhaps we should be, seeing that some of those who occupy the benches seem to see themselves as dictators who use their positions as a personal bully pulpit to impose their radicalized beliefs far outside mainstream opinion on the country. This isn't coming from the "radical left," which seems more a last bastion of normality and common sense these days, but from the radicalized right, thanks in large part to the election of an overgrown juvenile delinquent, Donald Trump, in 2016.
The judge overseeing the Mar-a-Lago documents case, Aileen Cannon, is such a case. She incomprehensibly suggested that in being a more "important" person than other people, Trump has more “rights” than said other people, and should receive special treatment from prosecution for committing crimes. Cannon claimed that Trump’s standing in public opinion would be “harmed” by the bad publicity generated by the revelations that he illegally confiscated classified documents for which there was no “explanation” for why he possessed them, a clear violation of the Espionage Act. The Eleventh Circuit Court ridiculed her “reasoning,” since there was no legitimate reason why Trump was in possession of classified documents as a private individual; the court allowed the Justice Department to continue its investigation into the classified documents.
How did such people with clear biases whose “reasoning” is completely unsound, seemingly ignorant of the facts, unmindful of the precedent set to adjudicate unlawful behavior, and based on personal prejudices be deemed “qualified” for important judicial positions? Trump, it seems, decided to give his untrained ear to the far-right Federalist Society. In The New Statesman in 2018, Michael Avery, co-author of the book The Federalist Society: How Conservatives Took the Law Back from Liberals, described its philosophy as
In general they promote these kinds of ideas: they are in favor of small government as opposed to big government, they oppose most government regulation of business and property, their core value is private property and the ability of a private property owner to do what he or she wants with their private property, they are strong believers in American exceptionalism and believe the US has a special role to play in the world and that people in the US are somehow a special kind of people, they would rather have things done by the state than federal government and they are strong on religious freedom but religious freedom of a sometimes extreme nature – arguing, for example, that religion is an excuse for not complying with anti-discrimination laws.
There seems little difference between this and libertarianism, although the latter tends to be even more extreme, in that it only accepts the most nominal restrictions on an individual’s right to do whatever he/she wants to do, short of doing things that affect another person’s rights (like the right to breath, maintain possession of their property, etc.). However, a key difference from Federalist philosophy and that of libertarians is that while the latter technically embraces any ideology (even “anarchy), the Federalists are strictly right-wing, and to some extremely so.
Of course, this extremism suited Trump, who instead of trying to understand what the other side is saying, seems to take pleasure in offending as many people as possible out of whim, and the Federalists have told him that their judicial candidates are perfectly fine with that. Of course there are “limits” of what Federalist types will cheerfully tolerate; one could hardly imagine a typical Federalist/white nationalist defending the right of a black neighbor playing loud music they don’t like on their own property after midnight, despite under Federalist (and libertarian) guidelines they have a right to do this.
Previously, a Texas Trump-appointee ruled that the Biden administration—despite the executive branch’s clear authority in setting immigration policy—could not unilaterally overturn Trump immigration polices without a “good reason,” even though those policies were “new” and not binding. A majority on the Supreme Court upheld the “stay” of the Trump policies and appears ready to decide that the states have more authority to determine immigration policy than the federal government.
We have already observed where the courts are headed after Trump’s three picks for the Supreme Court were instrumental in gutting the authority of the EPA and overturning Roe v. Wade. So what we are seeing is that for even the most outrageous attempts to overturn the rule of law as it pertains to the rights of anyone the extremists on the right opposes, there will be Trump-appointed judges everywhere who far-right extremists know will give even their most obnoxious, unethical and immoral desires a more than “fair” hearing.
Meanwhile, the Supreme Court is set to hear a claim to overturn Section 230 of the 1996 communications act overseeing Internet activities, which allows internet providers immunity from lawsuits for the content that private persons put on their platforms. The reasoning is that entities like Google, YouTube, Facebook and Twitter are not “publishers” who have editorial discretion over what people post. Of course we know that these platforms do have rules against certain forms of hate speech and misinformation that promotes violence or some other form of threat to public order or health. The problem is not that this is “bad,” but it suggests that these platforms are acting as “publishers” with editorial discretion.
In the current case before the Supreme Court, Gonzalez vs. Google, what is being alleged is something different; Nohemi Gonzalez was killed in an ISIS attack in Paris in 2015, and it is being argued that not just the perpetrators and the poster of pro-ISIS video are responsible, but Google (which owns YouTube) is liable for damages for allowing such videos to be posted. The plaintiffs are also arguing that Google-owned YouTube acted as a “publisher” by using algorithms that “searches” for similar items that a user has searched for, thus providing more material to “radicalize” a person into a violent act.
In this case, it is alleged that radical ISIS jihadists had posted a video calling for violence against “unbelievers,” and people who viewed these videos were provided additional similar videos; this is to be expected by a search engine, regardless of the platform: when someone searches for videos on a particular topic or person on YouTube, you see “thumbnails” of similarly-themed videos. Lower courts had already thrown out the case because Section 230 was the law, but the Supreme Court decided to take the case, and if it decides the law is “wrong,” this could have a devastating impact on what kind of speech is allowed if its content is deemed to be, say, “defamatory” and Internet providers fear it may be liable for it. If Google had actively removed such invitations to violence in the first place—as it is doing now—this case likely would never have emerged, since simply saying that having an efficient search engine is a “crime” seems an absurd basis for a lawsuit.
There is more to be concerned about. We have a right-wing extremist court that will decide on issues of race, which if people once thought these were “settled” matters to do the minimum to protect minority rights, they are did not take into account a Supreme Court that is now far out of mainstream thought. What is under threat includes “race-conscious” college admissions, which at least at Harvard has an “Asian” face, by a demographic that is already vastly over-represented and has no historical reference about this country’s past discriminatory history and its efforts to remedy it.
The court is also set to hear arguments that could further erode the Voting Rights Act, one concerning Alabama’s ignoring demographic changes in order to maintain white Republican supremacy through blatantly discriminatory redistricting—and the other potentially more far-reaching, Moore vs. Harper, where North Carolina is arguing that the “conservative” reading of the Constitution allows states to make any laws they want in regard to how voting is done or controlled, without interference by the federal government or the courts. One wonders if this Supreme Court will “vote” itself out of hearing any case that involves blatant suppression of voting rights in Republican states, which is the next step toward dictatorship.
Then the court will also hear a case concerning a 1978 law meant to protect Native American heritage, which makes it difficult for non-Natives to adopt Native American children. Why this case is even being heard is difficult to understand, since presumably people who adopt outside their own “race”—particularly white people—prefer “safer” children, such as Asian or Eastern European children.
The Supreme Court—which earlier made a bizarre stay of the Biden administration simply falling back on prior policy of prioritizing certain classes of undocumented immigrants for arrest, meaning those who have committed crimes instead of simply arresting everyone in sight—and is apparently set to go outside its authority and impose its own immigration “laws” that favor Republican states like Texas that fear the “great replacement” to do, as mentioned, take control of immigration policy instead of the federal government, which appears to actually be a misreading of the Constitution.
The court is also set to hear another case involving a business owner’s right to deny service on religious grounds. The particular case in question is actually the second time in recent years that the court has heard a case in regard to the denial of service to gay couples due to “religious beliefs.” The problem with ruling in favor of the business owner is that this clearly leads to a “slippery slope.” All you have to do is listen to some of these extremist evangelical “Christian” carnival barkers to know that there are all kinds of people that “religious” people find offensive and believe it is a “sin” to provide services for.
That is where we are at this moment, and for decades to come. Chief Justice John Roberts seems unmindful of any loss of credibility of his court, but few people actually believe this is "his" court, because as the Roe v. Wade decision showed, he has little influence on the radicals who clearly represent a minority of mainstream thought. This is what happens when someone like Trump is elected. Some people rejoice about taking other people’s rights away just because they don’t like their political ideology, as they would in an authoritarian regime. But as they say, sow the wind, you will reap the whirlwind, if it will take some time to find that out.
No comments:
Post a Comment