One of the bedrocks of our American democratic tradition has been an independent, fair, and impartial judiciary.
Diane Watson, a former Democratic member of Congress from California, once said, “Historically, the judicial branch has often been the sole protector of the rights of minority groups against the will of the popular majority.” This statement is based on the notion that judges will apply the law fairly without regard to political pressure or their own individual leaning.
But what happens to a judicial system where politics and personal beliefs rule the day? With all the chaos and confusion in America, with our democracy in crisis, where is our judicial system in this time of upheaval?
Since this nation’s founding, governors and US presidents have appointed judges to the state and federal benches. But activity in our courtrooms today and the judicial selection processes on both the federal and state levels have shaken our confidence in that basic notion of a fair and impartial judiciary.
Shift in Approach
In more recent years, the judicial selection process has taken a sharp ideological turn that is damaging to our democracy and our Constitution.
A primary reason for this extraordinary shift in the courts is the overwhelming influence of the Federalist Society, an organization that advocates for an originalism interpretation of the US Constitution without regard to the fact that often the original intent cannot be ascertained. Originalists also ignore that the framers were White men, creating a constitutional order in a society where slavery was legal and women had no rights.
The originalism backdrop for judges with Federalist Society roots has been working to change the social order in our country by overturning the right to an abortion, LGBTQ+ rights, affirmative action, regulation of property rights, regulation of businesses, diminishing the power of federal agencies, and elevating freedom of speech over other constitutional rights.
Membership Has Its Privileges
Approximately 90% of Donald Trump’s appointments to the federal judiciary are or were members of the Federalist Society, including six of the nine US Supreme Court justices--Chief Justice John Roberts (former), Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barnett (former).
These are the same justices who, espousing judicial restraint, ignored precedent and overturned Roe v. Wade, eviscerated portions of the Voting Rights Act of 1964, and seem poised to gut it even more during this term.
Thomas in his concurring opinion overturning Roe said that “in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell.”
To be clear, these cases involve access to contraception (Griswold), the prohibition against state laws criminalizing consensual, sexual conduct between same sex individuals (Lawrence), and the right for same sex couples to marry (Obergefell).
Impact on State Courts
In addition to the Federal Society’s impact on the federal court system, the organization seems also to be exerting outsize control over the process of state court judicial selection.
Florida is a prime example, where Federalist Society membership has become a litmus test for appointment to the courts at all levels. Gov. Ron DeSantis (R), in his full embrace of an originalist philosophy, not only relies on such membership for judicial appointments, but also for appointment to the judicial nominating commissions whose members recommend candidates for appointment to the courts.
The shocking result is that Federalist Society commission members are selecting Federalist Society appointees for Florida courts.
Since its inception in the 1970s, Florida’s nominating commission members had been comprised of three members selected by the governor, three by the Florida Bar, and those six then selected three non-lawyer members. However, changes made in 2001 resulted in a gubernatorially controlled process.
Legislation to return the selection of commission members to what it was before the Florida Legislature chipped away at the more nonpartisan process has been blocked. And despite calls for change, the Florida deck is firmly stacked in favor of the Federalist Society and its ideology.
Not a Good Example
Florida’s example should ring alarm bells for supporters of judicial independence in every state, regardless of party affiliation. The only way we, the people, can end this perversion of the judiciary and preserve our democracy is through informed voting. It not only matters who is the president, it also matters who we select at all levels of state government.
For the most part, governors make more judicial appointments than the president, and those appointees handle the bulk of the cases that come into our court systems.
We must demand that our candidates state their vision for the qualities they seek in a candidate for judgeship. Are they looking for judges with a diverse background that can bring informed perspectives to their decisions? Or do they insist on a “one size fits all” litmus test that ignores the complexity of the world in which we now live, one the framers could never have imagined?
An independent judiciary is essential if we want to maintain the freedoms and obligations we enjoy under our Constitution. We must elect officials concerned with preserving a fair and impartial judiciary rather than an adherence to ideology.
When all branches of government are under one person’s control, we no longer live in a democracy.
This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.
Peggy Quince, a member of the board of Lawyers Defending American Democracy, served for 20 years on the Florida Supreme Court, including two years as the chief justice. She is the first African American female to lead a branch of Florida government.
Lauren Stiller Rikleen is a board member and interim executive director of Lawyers Defending American Democracy. She is also the president of the Rikleen Institute for Strategic Leadership and a former president of the Boston Bar Association.