Three Equal Branches of Government – Sort of

April 28, 2014

I have a poor excuse for not blogging for a long time — there have been so many issues to blog about that I have been paralyzed.  While true, it is such a lame excuse that I am forcing myself back into action.

I had an interesting argument with my mother and sister a few weeks back that I can’t shake, because it crystalized an issue for me that we don’t often appreciate – that this country is being run today by the judiciary, the only counter-majoritarian branch of government and whose members were elected by no one.

My mother and sister were expressing disappointment with President Obama and what appeared then to be his inclination to allow the construction of the Keystone Pipeline.  It would pollute large swaths of soil and create havoc with aquifers and peoples’ health and safety.  I didn’t disagree with them, but launched into a tirade about how the President Obama has at least given us (in general, not in every case, and at a snail’s pace) a more fair-minded  set of judges than were appointed by his predecessors, Bush, Clinton and Bush, Jr.

Look at what we have, I said: three branches of government.  Congress is supposed to pass laws, the President signs them and the Supreme Court interprets them.  Since President Obama was elected, he has had virtually nothing to sign, because Congress hasn’t done anything.  The Supreme Court, however, has acted, and with a vengeance.  In so doing, it has interpreted virtually every law in front of it to promote the interests of big business and the wealthy, all at the expense of everyone else.

The list is long, and it’s consistent.  It is much harder today for a plaintiff to stay in court.  Conley v. Gibson was the law of the land on pleading requirements for some 50 years before the Supreme Court threw it out, leading some judges to believe they can now dismiss a case if they don’t think it is plausible.  Class actions?  Eisen v. Carlisle and Jacquelin warned courts not to look at the merits when considering whether to certify a class.  Then, in a footnote in the Wal-Mart decision, Justice Scalia simply said that everyone had been mistaken in reading it that way.

The so-called summary judgment trilogy makes it easier for defendants to win summary judgment.  Every consumer transaction now contains a class action ban and the requirement of arbitration of any dispute, even if it involves a violation of federal antitrust laws. The Seventh Amendment and a trial by jury are simply out the window now by corporate fiat.  And don’t forget that corporations are now people and the First Amendment allows them to speak through their money, and since money does not corrupt political behavior, they can give as much money to influence politicians as they want!  One-person, one-vote is a distant memory.

I add all this up and wonder why everyone thinks the people we elect are the only ones who can make a difference.  It’s the ones we don’t elect who are wielding power like a machete through tall grass, making social policy with every one of their decisions.  Yet no one really thinks about it this way.  We focus on specific issues — like the Keystone Pipeline or taxes or whatever.  Meanwhile, the Roberts Court decides what cases it will decide, decides them and subjects us all to its philosophy, even if only by a 5-4 vote.

As far as I’m concerned, the only branch of our government doing anything right now is the judiciary.  Who we elect in the Senate and for President matters mostly because they decide who the next generation of judges will be.  This is why I’m fine with President Obama, whether or not he approves the Keystone Pipeline.    The electorate may not realize it, but his appointments will do more to shape history than anything else.  Once they have robes on, judges are there for life and answer to virtually no one.  As a lawyer trying to protect people, I’d at least like to think I have a fair shot at doing so.


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