America is losing confidence in its justice system for good reason

Trust in the courts is life-sustaining in America.

On Thursday, we heard Justice Department officials discuss electoral conspiracies exposed in courts across the country — verdicts a significant part of our citizenry on the right of the political spectrum.

Mario Nicolais

On the same day, the US Supreme Court issued rulings that undermined gun control rights and the rights of Miranda, infuriating activists on the left.

And on Friday the most political decision in the history of our country, Dobbs vs. Jacksonoverruled Roe v. calf.

For decades, belief in the legislature and executive branch of government has eroded confidence in their ability to govern. Bitter partisanship and political campaigning have taken a toll on America and its faith in its government.

But for a long time, the judiciary was the only branch above politics.

Throughout our country’s history, the courts have enjoyed a reverence not reserved for any other subset of government. They are the arbiters of truth, the hallowed halls of justice, a blindfolded statue holding scales and a sword.

Even their surroundings and clothing conveyed a seclusion from the ugly politics that other industries wallow in. From the pedestal to the black robe to the ridge behind the bench.

Joseph Campbell, the pre-eminent scholar of comparative mythology, observed: “When a judge enters the room and everyone stands, you are not opposing that fellow, but the robe he is wearing and the part he is going to play . What makes him worthy of this role is his integrity as a representative of the principles of that role and not some set of prejudices of his own.”

But that’s exactly where we are now.

Americans on both sides of the political aisle believe judges now enter courtrooms with preconceived outcomes. They believe that a fair and just trial is unattainable. They think courts, especially the highest appellate courts, contain nothing but political hacks isolated from elections and referendums.

It’s hard to blame them.

For decades, Democrats and Republicans have used the courts as political punching bags. Republicans, in particular, have condemned “activist judges” while working to appoint their own across the country.

In four years, President Donald Trump nominated two-thirds as many judges in four years as one of his immediate predecessors in their eight-year tenure. Trump appointed one less judge than Obama on the Circuit Court of Appeals and one more on the all-important Supreme Court. Of course, that one seat is where things really took off.

When Republicans in the US Senate refused to hold hearings, let alone vote, to confirm Merrick Garland (now US Attorney General) to the Supreme Court many months before a presidential election, they put a stamp of partisanship on the nomination process. They stamped it in steel when they reversed course to get Judge Amy Coney Barrett through just days before the next presidential election.

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Unfortunately, the judges seem to play right into the assumption. I have argued that judges must adhere to Justice Antonin Scalia’s principle that “the judge who always likes the results he gets is a bad judge”.

The current US Supreme Court’s decision to overturn 50 years of precedent and abolish a constitutional right for the first time in its history smacks of nothing but politics. Whatever Judge Samuel Alito writes, this is not a comparable situation Brown v Board of Education. Rather, it is the political goal he has been striving for for decades.

Alito’s decision will have a significant and lasting impact on our democracy, separate and apart from its impact on abortion laws.

America is likely to be rocked by political turmoil in the weeks, months, years, and decades to come. Unfortunately, it looks like the steadfast stakes of justice will no longer moor us in the storm.


Mario Nicolais is an attorney and columnist writing on law enforcement, the legal system, public health and public policy. Follow him on Twitter: @MarioNicolaiEsq


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