Why Judges Matter

I was astonished when I read this report in The Washington Post, mostly because the judge was so obviously, incredibly wrong about both the law and the facts.

U.S. District Judge Reed O’Connor found that the pandemic “provides the government with no license to abrogate” the freedoms that any American has, and that the service members had a right to avoid getting a vaccination on religious grounds.

“This Court does not make light of COVID-19′s impact on the military. Collectively, our armed forces have lost over 80 lives to COVID-19 over the course of the pandemic,” O’Connor wrote Monday in a 26-page order.

But the judge added that the “loss of religious liberties outweighs any forthcoming harm to the Navy” and that “even the direst circumstances cannot justify the loss of constitutional rights.”

A first-year law student would know that “religious freedom” does not give citizens the right to harm others. I used to explain to my students that your sincere belief that God wants you to sacrifice your newborn does not trump laws prohibiting you from doing so.  As “originalist” Justice Scalia wrote in Employment Division, Department of Human Resources of Oregon v. Smith, general laws prohibiting drug use take precedence over the plaintiffs’ right to participate in tribal religious observances that included smoking peyote.  

Smoking peyote during a religious ceremony didn’t harm anyone. A requirement that military personnel be vaccinated  protects others against a very dangerous disease. It would clearly be constitutional even if vaccine denial posed a genuine religious concern.

But it doesn’t.

The fact is that no religion  (with the possible exception of Jehovah’s Witnesses and Christian Scientists, who don’t believe in any medical science) teaches vaccine denial. If I simply invent a “religious” precept that is not grounded in the actual doctrine of my faith, I can hardly demand that American courts respect my “religious” beliefs.

I was sufficiently incensed by this ridiculous ruling that I decided to Google the judge, who–unsurprisingly–is a high-profile member of the Federalist Society.

Here’s what the Texas Tribune had to say about him when he ruled that Obamacare was unconstitutional. (Remember that?)

In 2015, it was an Obama administration effort to extend family leave benefits to gay couples. In 2016, it was an Obama administration guideline allowing transgender children to use school bathrooms that align with their gender identity. And on Friday, it was the entirety of Obamacare that U.S. District Judge Reed O’Connor struck down as unconstitutional after a Texas-led coalition of 20 states sued this year to kill it.

Over the past four years, O’Connor has handed Texas major wins in several high-profile Texas v. United States lawsuits. And it doesn’t seem to be a coincidence that those cases landed in his court. The North Texas judge has emerged as something of a favorite for the Texas Attorney General’s Office, a notoriously litigious legal battalion known for challenging the federal government in cases and controversies across the country.

Since 2015, almost half of challenges to the federal government that Texas filed in district courts here landed in O’Connor’s courtroom, attorney general’s office records show. He is one of several dozen federal judges of his rank in the state.

The Obamacare decision, which was reversed by higher courts, was criticized by both conservative and liberal legal scholars as misguided and politically motivated.

The conservative legal scholar Jonathan Adler and the liberal legal scholar Abbe Gluck came together to write in The New York Times that the decision “makes a mockery of the rule of law and basic principles of democracy.

O’Connor is routinely described as a reactionary, and his vaccine decision is just the most recent evidence that he ignores legal precedents incompatible with his far-right politics. In 2015, he held a portion of the federal Gun Control Act of 1968 unconstitutional and enjoined the federal government’s definition of marriage in the Family and Medical Leave Act of 1993.

In 2016, as previously noted, he struck down an Obama administration rule requiring that transgender students be allowed to use the bathroom corresponding to their gender identity. In 2018, he ruled that the Indian Child Welfare Act was unconstitutional. That 1978 law was passed in response to concerns over the high number of Indian children that were being removed from their families by public and private agencies and placed in non-Indian families. It gave tribal governments exclusive jurisdiction over children who reside on, or are domiciled on a reservation.

It goes on.

O’Connor’s rulings are frequently reversed, but the damage done goes far beyond the time and money wasted on appeals. The initial publicity garnered by his off-the-wall rulings gives an aura of legitimacy to arguments that have no legitimacy, and that are inconsistent with settled constitutional precedents.

Thanks to this decision, people will die. Unnecessarily.

Judges matter.


  1. Yes they do matter. And the Republicans have placed hundreds of these nut cases in the Federal system. They will do damage for decades.

  2. Sheila,
    I believe you’re wrong about Jehovah’s witnesses, their vaccination rate is between 95 and 98%. Even the mayor of New York commended them for their vaccination rate and inquired from them how they were able to do that. As a matter of fact the mayor actually apologized publicly at a news conference for misinformation on Jehovah’s witnesses and vaccination. The same with the 9/11 world trade center disaster, they opened the doors to their facilities in that location and rendered assistance to the injured by their medical staff on site. Jehovah’s witnesses have a completely different belief set than Christian scientists.

  3. First; this Covidi-19 Pandemic is a shifting antigen virus which medical science has never before dealt with, still no apparent source to confront and seek solutions. Laws have not yet “caught up” with the fairest legal way to deal with the deniers of even masks for protection let alone the medical treatment of vaccination. Never before has any virus or medical condition been primarily a political issue. Of course; never before have we had a Donald Trump sitting in the most powerful position in the world to make initial decisions even about the reality of the disease or to recommend injecting cleaning fluid to save lives. Today’s laws can only work with past medical conditions and treatments regarding this Pandemic as it ignores its own past decisions regarding women’s rights to obtain birth control or abortion even to save their life. SCOTUS has turned women’s bodies and health decisions into the top political issue today while ignoring the fact that “it takes two” to require the need for birth control or an abortion.

    But the majority of judges throughout this nation are old white men so we can’t expect better than Judge O’Connor to be making life-and-death decisions in our courts.

    We need more Judge Walmsleys sitting in authority; he knows the law and listened to the prosecution, the defense (even the kook who wanted to deny Black Parsons to sit in his court), the witnesses, the defendants (using their won words) to make his sentencing decisions and apply JUSTICE in his courtroom.

    “Judges matter!”

  4. Many judges are corrupted just like our politicos. They don’t care to serve as impartial judges because they’ve made the conscious decision to sell out. I would say on a continuum, they would rank as obvious sellouts to more deceptive sellouts. LOL

    I am sure there are a few moral and ethical judges remaining, but I’m not wasting my time seeking them out.

    When journalists and writers use the word kakistocracy to describe the USA government, they mean all four branches, including the press.

    This dysfunctional governance of greed and power is inching ever so closely to the edge of the abyss. It’s like watching the addict spiraling the drain clutching ever so tightly to their drug of choice but cannot see that it is killing them. Hopefully, it falls off the cliff before pressing the nuke buttons. It’s the machines in the movie Matrix. It was Specter in the Bond movie, etc.

    Time to build anew. What shall we call the next experiment?

  5. This knucklehead is from Texas, right? Remember, another “lawyer” in Texas graduated near the top of his class from Harvard Law. That would be Ted Cruz. These two wretches show clearly how Republicans in Texas embrace unfairness, bigotry and idiocy to twist the letter and spirit of any law into a pretzel that their warped constituencies love. Cruz moved to Texas because that’s the only place dumb enough to elect him to the Senate.

    Sickening. Literarlly.

  6. Yes, judges matter… a lot. But so do prosecutors and State’s attorney generals. Honest Georgians can attest to that, as can the people of Indiana.

  7. Perhaps this is a good example for the impeachment of federal judges. I wonder why it hasn’t already been done.

  8. Scalia’s opinion in Employment Division, Department of Human Resources of Oregon v. Smith was one of the worst decisions ever handed down by the Supreme Court. The notion that a constitutional right can be overridden by laws of general application is to lower that constitutional right to the legal status of an ordinary statute. Imagine if our other constitution rights could be overridden by Congress just by passing laws that apply to everyone? I think Scalia must have been smoking the Tribe’s peyote when he wrote that opinion.

    It should be noted that after Employment Division was handed down in 1990, it was criticized by almost everyone. The ACLU denounced the ruling. So did virtually every conservative and liberal group under the sun. That decision led a Democratic Congress, in a UNANMIOUS vote in the House and a 97-3 vote in the Senate, adopting a federal Religious Freedom Restoration Act which was signed into law by Bill Clinton in 1993. In 1997, the federal RFRA was held unconstitutional as applied to states. That has led to some 31 states following suit with their own state RFRAs. Other states have essentially adopted RFRAs essentially by judicial fiat. I am resisting a temptation to get into how Indiana’s RFRA was mischaracterized as establishing a right not to serve people in public accommodations and overriding civil rights laws, a misrepresentation that the Indiana ACLU representative openly acknowledged at a legal seminar I attended after Indiana RFRA was adopted.

    You, however, don’t have to lower the free exercise constitutional provision to the level of an ordinary statute though to find there are limits on that constitutional rights. And as you point out, virtually no religions have tenets against vaccines.

  9. Before someone chimes in abou tje “fix” to Indiana’s RFRA, the fix didn’t actually do anything to change the law. It just merely made explicit the Indiana’s RFRA didn’t override civil rights laws, which no court anywhere had found that an RFRA did. Another part of the fix actually expanded religious freedom…a fact that critics completely missed in their zeal to celebrate their hollow “victory” by getting the fix adopted.

  10. I do not believe that Jehovah’s Witnesses and anti-vaccination. They hold it to be a personal choice.

  11. Let’s pretend that this is possible: We could convene courts of perfectly objective completely informed experts in each field.

    We could ask the perfectly objective court of historians to comb through the entire history of humanity and attribute exactly all of the good and all of the harm caused by life and death faith in the supernatural. What do you suppose would be their verdict?

    Then we could ask a court of perfectly objective scientists to render a entirely tangible evidence only based verdict on the odds of the supernatural’s existence. What would be their verdict?

    While we were at it we could convene a perfectly objective based only on evidence court of jurists to tell us, based on the verdicts above, what role should the supernatural play in human legal affairs as compared to human cultural or internal affairs?

    Being in no way expert or objective, my instincts would guess at the outcome of the impossibility above. The verdicts would build towards religion as a totally human based internal need and therefore should play an entirely personal role in the lives of everyone and they should be very compelled to dedicate their lives according to their personal religious opinion and needs. However faith based behavior should under no circumstances be imposed on others without their willing consent.

    In other words, liberal democracy should hold separate, faith and fact.


  12. Constitutional rights are changed by Amendments and Supreme Court decisions. Wasn’t slavery a “ constitutional right”?

  13. My sense is that if most Americans read and understood my impossible analogy above they would tend to reach the same conclusion that I did which is the same conclusion that the framers of our Constitution reached so long ago.

    To me that explains why the Republican Party cannot compete for power based on a legislative platform and must depend and starting and maintaining cultural wars including so called “conservative” judges. They have reframed to meaning of “conservative” into a cultural position.

    Masterfully, I might add. In fact the ability of modern advertising on modern entertainment and social media is typically, but not at all obviously, masterfully done.

  14. I have long been of the view that the only sure way out of whatever political morass we find ourselves in is a strong, unyielding adherence to the rule of law, and while that obligation falls most clearly and directly in most instances on the courts, it is a goal and a raison d’être that everyone must embrace up and down the governmental ladder and deep within the body politic. I have a bias: that most of the time most of the judges will rule in ways that give meaning and life to this principle. But not always, obviously. When trial judges wobble, the appellate courts have to move in to reset things on a corrective course. It is a system that has served our country well for a long time, but the sine qua non is competent, wise, committed, impartial judges.

  15. It’s not a problem Sheila, I know you’re a stickler for facts.

    The thing that I have trouble with and always have had trouble with, is the Christian tenant to love your neighbor. If, you love your neighbor, that means you’re not going to infect your neighbor with some sort of life-threatening illness.

    Judges who support these Christian groups that do not want to vaccinate themselves, or have themselves vaccinated however you want to put it, are definitely going against the Constitution and the separation of church and state. Freedom to worship does not mean that your freedom to worship allows you to infringe on other people’s worship or lack of worship leading to issues and possibly death.

    As Jefferson said to build an impenetrable wall, and that’s what should be done. And those in government who are going around the Constitution should be kicked out of their positions.

    That’s why I suggested that there’s going to be a showdown somewhere, but it depends on what president is in power that would shape the martial law. If you want to clean it up, there’s a way to do it, because you’re never going to win those hearts and minds which are dead set against government basically. They want a theocracy in a secular society, that’s like mixing baking soda and vinegar. No one individuals Liberty, or any groups Liberty, should take precedent over everyone’s liberty.

  16. My now deceased wife had a doctorate in education from the University of Illinois, Champaign-Ubana, and was more than once as a tenured professor her university education department’s representative who was appointed to defend her department’s courses and programs when the dreaded accreditation teams came to town. She herself dreamed up and taught a graduate course that she named Creative Modes of Expression that an accreditation team approved. Wonder how that might have passed muster with “concerned parents” who are sign-holding and school board threaterers. . .

Comments are closed.