Justices under fire for not bowing to political demands


When the Supreme Court was debating the landmark Dobbs abortion case, Senate Majority Leader Chuck Schumer shouted threats (“You will reap the whirlwind…”) at them from the courthouse steps. Thus the last doubt was obliterated that the unquestioned authority of the court was under serious attack.

An independent judiciary is the key to maintaining our constitutional republic. It is the reckoning mechanism that keeps us on track, muting the potential excesses of popular democracy. Americans once understood this and valued our judiciary, even when it sometimes worked against their individual interests.

But the times, they are a’changin. Americans have now divided into warring classes who believe that in the pursuit of power and short-term goals, a conscientious judiciary is often in the way.

At least until recently, school children were taught that our founders, in order to dilute the power of centralized government, created three branches. The legislative makes the laws, the executive branch enforces the laws and the judiciary ensures that laws are enforced in accordance with statutes and the Constitution.

In the 1930s, Franklin Roosevelt clashed with the Supreme Court when their rulings thwarted his plans to assert federal control over wide swaths of the American economy. The Justices could not find in the Constitution’s list of enumerated powers any which authorized the New Deal legislative barrage.

They were right but Roosevelt’s response was to propose “packing the court“, expanding the number of Justices, and increasing his power. Roosevelt’s view of the court as an obstacle rather than a necessary guardrail shocked many Americans of the day. The plan eventually failed, although most of the New Deal was enacted anyway.

Yet the status of the judiciary branch in our federal system is showing deterioration today. Leftist ideologues conduct protests of court decisions in front of Justices’ residences when they render unpopular decisions. That’s clearly contrary to federal law yet they suffer no repercussions. The Biden Department of Justice simply ignores them.

Justices are personally harassed by activists. Angry partisans confront them and their families in restaurants and public spaces. The Justices, particularly those of the pro-Constitution persuasion, are faced with spurious charges of ethical violations and demands for recusal. That’s especially ironic in the case of Justice Clarence Thomas, who has a well-deserved reputation for willingness to vote against his own political positions.

The Arizona Supreme Court also passed down a controversial abortion decision, ruling that the Arizona legislature, following the reversal of Roe, had effectively reinstated a restrictive Civil War-era law. In response, a special interest group known as “ Vote Them Out” is attempting to remove justices Clint Bolick and Kathryn King for failing to support their pro-abortion policy agenda

In Arizona, Supreme Court Justices and most lower court judges are not elected but appointed and then undergo periodic retention elections which are intended to weed out incompetent or corrupt judges. Although few judges are not retained, the system works to depoliticize the judicial selection process and give voters input into keeping judges.

It is this retention system itself that Vote Them Out is attacking by forcing Bolick and King to in effect run for their own seats in a political style campaign. There are no credible arguments that either Justice is incompetent or corrupt or that they didn’t provide constitutional authority for their rulings. The issue, again, is simply that their decision was unpopular, at least with Vote Them Out.

As Justice Bolick pointed out in an Arizona Republic op-ed, judges in a merit system are handicapped in a politics-based election. They can’t personally raise funds or seek endorsements. They have strict ethical limits on what they can discuss. Their opponents have no such restraints.

It’s telling that justices at all levels are commonly referred to as “liberal” or “conservative”. Such political labels should only matter if justices are policymakers, which they are not. The critical descriptor which matters for justices is “pro-Constitution” versus “pro-some interest group’s opinion”.

Americans seem to have little regard for the values and institutions which are the foundations of our own national greatness. Our independent judiciary distinguishes us from corrupt autocracies everywhere and throughout time. We disrespect it at our own peril.

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  1. Jim Kearney Member
    Jim Kearney

    There’s what judges are theoretically, then there’s the real world. In most states political activism through a party has long been the way a lawyer becomes a judge. We can only hope for fairness, for judges who can put their own religious beliefs and political sponsors out-of-mind.

    There have been in our recent history fair-minded Justices of the Supreme Court who chose the their understanding of Constitutional rights and precedent over partisanship and zealotry. I’m thinking particularly of two appointees of President Reagan, Sandra Day O’Connor of Arizona and Anthony Kennedy of California. Our nation’s judiciary would not be as partisan and divided as it is today if judges like them remained on the High Court.

    The campaign against Arizona Supreme Court Justice Clint Bolick is disappointing. The vehicle to permanently undo Arizona’s 1864 abortion ban will likely be on the ballot this fall when the state votes on legalized abortions through 24 weeks (the effective viability standard under Roe/Casey).

    All efforts focused on restoration of reproductive freedom in Arizona are best off focusing on that measure, which will resound nationally, as opposed to votes on individual state judges. There will be many such state initiatives once again, and I sincerely hope voters will be able to separate those votes from the candidate races. It won’t be easy, because the state reproductive rights campaign websites often take donations through Act Blue, an organ of the Democrat Party. The whole left wing Democrat agenda is trying to ride on the political coat tails of abortion rights which are favored by 62% of the country, Democrats, Republicans, and Independents alike.

    Clint Bolick has always struck me as more of an individual freedom-oriented libertarian than a typical GOP partisan anyway.  I recall before becoming a judge he was a persistent and persuasive advocate/litigator against racial preferences as a founder of the Institute for Justice.

    If re-elected to the AZ Supreme Court he’d surely be obliged to enforce the state’s Right to Abortion Initiative after it passes.

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  2. Rightfromthestart Coolidge

    We need a constitutional amendment locking the number of Justices at 9, gentlemen’s agreements only work when dealing with gentlemen which we clearly are not. 

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  3. The Scarecrow Thatcher
    The Scarecrow

    Very well stated. I wish this essay could be read aloud and discussed in schools, teaching students the reason for the law and the process and why they are critical to a free, self- governed people. More important than any one person’s feelings or desires.

    Most never learn that “fairness” is whatever emerges if all the rules are followed, not whatever a particular person or group feels should happen because, well, they wish it so. Baseball would be no fun if you let a fan for one team come down and be the umpire this time.

    • #3
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