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Unless you dive deep into legal nerdom, law review articles aren’t usually something to get excited over. Oh, I’m sure the authors (and their moms) are quite happy over the achievement, but there are so many published every year that, unless the subject directly related to your legal specialty, new articles come and go with barely a notice. That is decidedly not true of Eastern District of Wisconsin District Court Judge Lynn Adelman’s latest piece in the Harvard Law Review.
The article goes hard after the Roberts Court and the conservative majority who has made it their mission to move American jurisprudence to the far right. A move Adelman calls out as “undermining American democracy.” He begins by pulling the mask off the veneer of impartiality that John Roberts, in particular, loves to drape himself in:
By now, it is a truism that Chief Justice John Roberts’ statement to the Senate Judiciary Committee that a Supreme Court justice’s role is the passive one of a neutral baseball “umpire who [merely] calls the balls and strikes” was a masterpiece of disingenuousness. Roberts’ misleading testimony inevitably comes to mind when one considers the course of decision-making by the Court over which he presides. This is so because the Roberts Court has been anything but passive. Rather, the Court’s hard right majority is actively participating in undermining American democracy. Indeed, the Roberts Court has contributed to insuring that the political system in the United States pays little attention to ordinary Americans and responds only to the wishes of a relatively small number of powerful corporations and individuals.
And that’s the opening paragraph, y’all.
Adelman then traces the jurisprudential influences to show how the long arc of history has been bent not just to the right, but the far right under the Roberts Court:
[I]n the last third of the twentieth century in response to a number of economic and political developments, including the egalitarian movements of the 1960s, corporations and wealthy conservative donors began to invest large sums of money in promoting conservative ideas. At the same time, a conservative legal movement emerged, and it provided the context in which all of the members of the Roberts Court’s conservative majority came of age. I note that in conjunction with several other developments, the conservatives’ aggressiveness has contributed to causing economic and political power to became increasingly concentrated at the top. As a result of this concentration, government policies have become less and less responsive to the needs of ordinary Americans. I point out that under these circumstances, it would be highly desirable to have a Supreme Court that could at least play some role in righting the ship as the Warren Court did in the 1950s and 1960s when it addressed such long standing deficiencies of American democracy as segregation, malapportioned legislative districts, and a brutally unfair criminal justice system. Rather than counteracting the anti-democratic trends in the country, however, the Roberts Court reinforces them.
Adelman keeps hitting at the Roberts Court throughout the article, resulting in this dire warning:
We are thus in a new and arguably dangerous phase in American history. Democracy is inherently fragile, and it is even more so when government eschews policies that benefit all classes of Americans. We desperately need public officials who will work to revitalize our democratic republic. Unfortunately, the conservative Justices on the Roberts Court are not among them.
But of course, since it is a federal judge taking a political stand, there’s a fair amount of handwringing going on about whether it is okay that Adelman said what he said. But as Dahlia Lithwick and Mark Joseph Stern write for Slate, turnabout is fair play. Conservative jurists make it a habit to “own the libs” — a trend that has only gotten worse since Trump appointees have flooded the federal bench — and Adelman’s writing is no different:
Is it somehow over the ethical line when a progressive judge puts these observations into writing?
Five years ago, we’d have said yes, it goes too far. Under any set of ordinary circumstances, it is always better for life-tenured jurists to stay in their lane, avoid partisan political criticism, and work to preserve the vitally important norms of judicial independence and nonpartisan, oracular judicial temperament. But there remains the question—possibly the abiding question of our time—about whether only one side can remain beholden to norms when the other has eviscerated them.
Evisceration is not an exaggeration. Judge James Ho, a Trump appointee to the 5th U.S. Circuit Court of Appeals, has assumed the role of robed Fox News commentator. He disparages women who get abortions, as well as judges who uphold their right to do so. He claims that we can stop mass shootings by shielding police from lawsuits when they accidentally murder innocent people. He intentionally misgenders transgender litigants—as does his colleague, Kyle Duncan, a fellow Trump appointee. Another judge on the 5th Circuit, Edith Brown Clement (a George W. Bush appointee), penned a partisan attack on her colleagues. And, under the influence of Trump’s judges, the 5th Circuit as a whole has begun defying Supreme Court precedent in a series of blatantly political decisions.
There’s something glorious about the clear way Adelman lays out his argument against the Roberts Court, especially for liberals who’ve taken so many Ls over the course of the Trump administration. But the real judge of the validity of Adelman’s arguments will be history.
Kathryn Rubino is a Senior Editor at Above the Law, and host of The Jabot podcast. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).