Legislate well & reform the courts
There was an article on Forbes a couple of days back, (I guess you’d call it an opinion piece, though it wasn’t marked as such), making the argument that the best way to fight back against right-leaning courts is to use legislation as a weapon. Write clear, concise, unambiguous legislation so that courts have no alternative but to interpret them as they’re meant (say what you mean and mean what you say, Alice). After all, if the meaning is clear then a judge would be forced to rule in a way that aligns with that meaning. Right?
In a lot of ways I agree. If a piece of legislation has a clear cut, unambiguous meaning how could a judge rightfully rule in any way that goes against the meaning? Well, here’s where I see this gambit being a 50% solution before falling apart. There are two ways to abide by a law, the letter of the law and the spirit of the law. Both, sorry to say for all you originalists/textualists, are equally important. Now, I’ll concede the point that much of modern legislation has been written sloppily, rather vaguely, and a bit loose around the edges. Something that has forced bureaucracies and government agencies to assign meaning and intent, leading to lawsuits wherein judges and juries now have to parse out and glean meaning and intent and spirit in such a way that the authors’ original meaning and intent likely becomes lost, twisted and renders what the legislating body meant irrelevant (I’m looking at you, 2nd Amendment).
So, yes, clear and unambiguous legislation would go quite far to cure that ill. However, say a State passes a law that says that everyone who is of legal voting age is automatically registered to vote and that as long as their vote is received by poll closing on Election Day their vote counts. Period. Now, let’s conjecture that this breeds a lawsuit on grounds that the law says nothing about signatures, nor does it address residency. The counter argument would be that residency is already specified in the State Constitution (let’s concede here that it is addressed in the State Constitution) and that the decision on how best to handle signature matching will be left the Board of Elections for each county.
As a judge what do you do when the inevitable lawsuit over signature matching lands at your feet. Or, the question of who is and who isn’t a legal resident of the State? As a judge who leans on the strict side of legal interpretation you could, depending on the arguments made and facts presented, decide that a non-trivial number of ballots cast don’t meet the State requirements. (Now, mind you, this is most likely a piss poor example here, but it’s the day before Halloween and I haven’t had my first cup of coffee yet.) On the flip side, a judge who leans to a more “spirit over letter” interpretation of laws, and knowing that signature matching isn’t an exact science and relies heavily on personal judgement, might easily conclude that as long as the voter had a legal residence in the State the vote counts.
Here we have a (piss poor) example of legislation that was written clearly, concisely and unambiguously still presenting ambiguous, somewhat vague guidance on vote counting and ballot legitimacy. The only way we maintain, nurture and grow a healthy democratic society is by enfranchising as many citizens as we can. To find loopholes and write laws that are counter to expanding the electorate pushes us even further toward autocracy and minority rule. A place we have been before, and a place that always leads to civil conflict and unrest, either through all out war or through peaceful and violent protests.
To avoid repeating history, again and again and again, we need to not only force our elected officials to write better legislation and stop pretending the courts can decide, but we also need to appoint and elect judges who view the foundation of our Nation as one of inclusivity. We need jurists who believe that the spirit of the law is as important as the letter.
Lastly, we need to reform the courts, starting at the Federal level. This will be messier than it seems, and involves a lot of pieces. But, generally speaking, first, we need to take a top down approach, this is, after all, where government and business are most alike. Change comes from the top down (even when the masses/workers rise up to protest injustice, the real change happens when leadership instills those changes). So, we expand the Supreme Court to rebalance it to better reflect today’s American Society, either in philosophy or cultural/racial makeup. Preferably, both. We then work our way down to the lower Federal Courts, again, appointing judges who are inclusive in their legal views. Look at the number of judges and population distribution and consider expanding these courts or redistributing to better handle case load. Not being a legal scholar I’ll leave some of the more nitty gritty details up to those who have the background and knowledge. Lastly, we entice the Several States to enact and pursue the same or similar reforms. Easier said than done, I know.
With regard to the effort that will be needed to reform the Federal Judiciary, one thing I do know and that is the judges appointed under the Trump Administration are unfortunately tainted by Trump’s own corruption and that of Mitch McConnell’s zealous drive to transform the judiciary into a reflection of something that made sense in the early 19th Century. In many ways we’re thankfully no longer that country. Unfortunately, for these judges (who, no matter what you think of their legal leanings, I view as unfortunate pawns and victims in a nasty political war) their legitimacy is in question, and for some in serious doubt. While a long, arduous task, I see no other recourse but to reexamine these appointments and each judge’s qualifications. We made need to impeach some, and yes, I do include the three newest Supreme Court Justices here. However, to keep things fair and to help salve the wounds inflicted by this Administration on the Judicial Branch I’d leave the qualified judges on the bench, even if I wholeheartedly disagreed with their legal doctrine.
This won’t be easy, but nothing worth doing is ever easy. Our Democracy and the longevity and stability of our Nation is at stake. If that’s not worth it to you then I don’t know why you stay here. There are plenty of banana republics around the world that I’m sure would welcome you. I, however, love my country and know we can do so much better. This disappointment I feel in our Nation I hope will pass. I hope the American People do rise up and prove in this election that we are a decent, kind, caring and communal country. That we are open and welcoming. But, we also need to rise up in anger and in hope, in distrust and in trust, in expectation and in motivation, and demand from our leaders that they do better. And, that starts with electing the kind of people who will bring back kindness and inclusivity, who see a greater America is one in which all citizens are Equal and whose voice always counts. And, it’s an America whose judges and courts reflect those values, in not only the people sitting on the bench, but in the architecture and infrastructure surrounding the courts.