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Columnists

The Judiciary is the Most Misunderstood Gov’t Branch

Back in the 1980s when I was in high school and then college, the vast majority of Americans were substantially apolitical. The Wall Street Journal was predominantly a business paper, leaving the New York Times the clear leader among prominent national broadsheets (back then, it was deserving of the nickname ‘paper of record’). CNN was in its fledgling stages, and Fox News wasn’t even a gleam in Rupert Murdoch’s eye. MSNBC, Newsmax, and One America News were years from being created.

There was no social media – heck, there wasn’t even an Internet.

I was a political nerd insofar as one of the very few in my age group who gave a hoot about politics. I majored in it in college, but my peers outside that discipline almost never brought it up in casual conversation.

Fast forward to now, and the technological explosion that turned everyone with a smartphone into a self-styled documentary filmmaker has also spawned a generation of armchair political pundits. Interest aside, most are still rather new at the game and get much of it wrong.

One notable fallacy is the public’s perception of the role and purpose of the judiciary branch. Granted, most people get the concept at the trial stage – such as the woman who slips and falls in Aisle 7 and proceeds to sue the supermarket. But when we move to the appellate level, that’s when things start getting murky. Courts of appeal are not arbiters of fact: in other words, if the trial court rules that the defendant ran the red light, that factual element isn’t overturned by a higher court; only questions of law are.

Fuzziest of all is when a case reaches the United States Supreme Court, which is the ultimate arbiter of the Constitution, whose authors are long deceased and so they’re unavailable to answer the question: “what did you mean by that?”

Shortly after the 2020 election, President Trump’s legal team – as well as external supporters independent of the administration – filed a barrage of lawsuits to challenge the validity of the process, almost all of which were summarily dismissed by the courts. That many of the judges who refused to hear the case were Trump appointees led to two exaggerated conclusions: 1) that these were turncoats who had been bribed or otherwise cajoled by dastardly America-hating leftists to betray the president; and 2) that if even Trump’s own appointed judges disagreed with him, he really must be delusional and so his last day in office couldn’t have come a moment too soon. Both of these criticisms often stem from a failure to understand that courts won’t simply humor a claim that upon early investigation presents no credible evidence. For example, if A says that B punched him in the face and there are no witnesses, no marks on A’s face, and no other evidence to support A’s claim, a court will not simply say: “ok, let’s play this out and see what happens”; instead, it will most likely grant a defendant’s motion to dismiss on insufficient evidence.

Similarly, that the courts threw out the Trump lawsuits doesn’t mean they were rooting against the incumbent to serve for another four years, but that they can’t pursue a complaint that is not at least backed by sufficient evidence (i.e., not merely rare instances of ‘dead people voting’). By the same token, just because a court throws out a case for lack of evidence doesn’t mean the claim is false. For all we know, B really may have punched A in the face when no one was around to see it.

Even more recently, the judiciary came under attack following the Supreme Court’s ruling in Dobbs vs. Jackson, which overturned the landmark case Roe v. Wade and declared that abortion is not a constitutional right.

Here are some important factors to consider: first, the Supreme Court did not ‘ban abortion’; rather, it directed that the laws governing it be determined by each state. Second, if Congress decided to establish a federal law making abortion legal, it’s unthinkable that the Court would strike down such a statute, considering it overturned Roe because the Constitution is silent on abortion. Silence works both ways, after all.

Moreover, it’s important to note that in many other Western liberal democracies, abortions are legal but far more restrictive than even the reddest of our own states would be, and they’re legal because of laws passed by those nations’ respective legislatures; in other words, those countries’ courts never declared abortion to be a constitutional right there either. Essentially, the Dobbs court agreed with most of the nations around the world; it was Roe that was the aberration.

Americans are growing increasingly suspicious about the High Court’s motives, deeming it a hodgepodge of ideological hacks who’ve make up their minds ahead of time and simply need to justify their decisions by injecting oodles of highfalutin legalese into them. A closer read of each controversial case may yield a different perspective. Dobbs is 213 pages; how many of those stepping over one another to loudly voice their opinion will actually sit down and read it before they open their yaps?

But why strain one’s brain with nuance, when today’s media is happy to dole out comfort food by the bale: think Justice Sotomayor is a Marxist? Go to Feeding Trough #1. Justice Roberts is a sniveling RINO? Go to 2. Justice Thomas is a misogynist? Go over to 3.

Congress must be loving this: after decades of justifiable – with rare exception – single-digit approval ratings it earns no matter which party’s in charge, it finally has some company in the sewer. Except that for the most part, the judiciary doesn’t deserve it.

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