The Judicial Crisis

Those of us who are, or have been, lawyers have watched the litigation over Trump’s purloined documents with amazement bordering on mystification. Suddenly, the potential consequences of Trump’s appointment of rogue judges are too dire to ignore.

The crises within the federal judiciary aren’t all new. During my years in the academy, I was a subscriber and occasional participant of the Law and Courts listserv–a forum for professors of law and political science. Well before McConnell’s shocking departure from constitutional and democratic norms, or Trump’s nomination of only Federalist Society favorites, scholars had focused on the need to expand the Supreme Court–a need prompted by increased workloads leading to fewer decisions. 

Participants also raised concerns about the increasing politicization of the courts. As an article in Politico recently put it, the widely ridiculed–and clearly political– Cannon ruling

underscores the deep fragility of judicial independence and the extraordinary strains it’s of late experienced. The episode is further a timely reminder that there’s no guarantee that an independent judiciary will survive. Just like other public institutions, American courts can unravel and lose public trust, with no easy way to get it back.

The lifetime appointments of federal judges were intended to shield jurists from political pressure, leaving them free to issue decisions based upon their reading of the law, rather than partisan passions. The Founders seemed not to worry about the possibility of politicized appointments.

As Politico noted,

the drafters of the Constitution assumed that there was little risk of politicized appointments for two reasons. First, they expected the supply of qualified judges to be very limited. Second, they viewed the Senate as a disinterested body, “standing above politics.” Of course, both assumptions quickly foundered with the rise of law schools and national political parties. And the federal judiciary attracted partisan labels as early as 1800. Judicial independence, in short, was compromised early and deeply by the failure of the framers’ guiding assumptions.

Commenters to that Law and Courts listserv also noted the effects of longer lifespans on the federal judiciary, and advocated term limits that would be long enough to shield judges from the immediacy of political repercussions (the preferred term was 18 years) to mitigate concerns over terms stretching into judicial dotage. 

Now, concerns about the state of the judiciary extend well beyond academic discussions.

It is in this context of pervasive skepticism about the quality of American courts that Cannon issued her order. In its details, it confirms and exacerbates skepticism about the idea of an apolitical bench. Even conservative commentators have flagged its sharp swerve from the normal treatment criminal suspects receive based on “irrelevant” considerations about Trump’s “reputation.” Concerns were stoked when Trump’s lawyers “went shopping” for a judge he’d appointed — rather than appear before the magistrate who’d issued the original warrant — and who’s received death threats for his pains from the former president’s supporters. And they flared further when Cannon telegraphed her intention to rule for the president who appointed her even before the Justice Department had filed any papers.

Cannon’s order, then, is troubling not just in isolation as a “deeply flawed” decision on its specific merits. It also should worry because it seems to affirm, and hence accentuate, a larger narrative of fracturing judicial independence.

Jamelle Bouie addressed the issue of a politicized judiciary in a recent New York Times essay. His recommendation echoed that of the scholars on the listserv: expand and reorganize the federal court system.

The practical reason to increase the number of courts and judges is that the country is much larger than it was in 1990, when Congress made its last expansion, adding 11 seats to the circuit court system and 61 seats to the district court system. This was modest compared with a change in 1978, when President Jimmy Carter signed the largest judiciary expansion in history, creating 150 new judgeships and expanding the entire federal bench by more than a third.

In the 32 years since 1990, the United States has grown from a population of roughly 250 million to a population of over 330 million. More people means more legal disputes, more legal disputes means more cases, more cases means more work. And the federal judiciary is swamped. Last year, the Judicial Conference of the United States, a nonpartisan policymaking body for the federal courts, recommended that Congress create 79 new judgeships across existing district and appeals courts.

Congress, and here I mean Democrats, should go further with a court expansion to rival Carter’s. They should create new circuits, new courts and new judgeships. The goal is simple: to account for growth and to deal with the problem of a cohort of hyperpartisan and ideological judges whose loyalty to Trump may outweigh their commitment to the law.

I agree. But it won’t happen if Americans don’t vote Blue No Matter Who this November.


  1. We need not only more, but more qualified judges. And by ‘qualified’, I mean those who follow the law, not the polls.

  2. “The lifetime appointments of federal judges were intended to shield jurists from political pressure, leaving them free to issue decisions based upon their reading of the law, rather than partisan passions.”

    Those lifetime appointments could also find the federal judges become complacent in their vaulted positions and become lax in issuing decisions based on their reading of the law. Take “Uncle” Thomas for example who believes he does not have explain how or why he reached decisions; just because “he says so”. Justice Ruth Bader Ginsberg was seated on the Supreme Court with a 97 -3 vote; probably the last and possibly the only apolitical, nonpartisan Judge in our lifetime history. SCOTUS today has a 5 of 9 advantage over the Constitutional meaning of the Justice System and the Appeals Court has a 6 of 11 advantage with Trump’s appointees.

    “The Judicial Crisis” in lower courts have been blatantly racist and sexist probably from the beginning. The amazement across this nation when the three police officers were actually arrested and convicted for killing George Floyd and the three white men who stalked and “cornered like a rat” in their own words, to kill the young black man who was jogging also was astounding. “The Judicial Crisis” in this country does not end at the federal level. The federal level is simply the most dangerous.


  3. The left needs to recognize their own leading role in the politicization of courts.

    First, there has been the politicization of the confirmation process, starting with the Democrats attacks on Robert Bork, one of the most qualified individuals to have ever been appointed to the Supreme Court. I know Republicans also now engage in politicization of the confirmation process, but it was Democrats who started it.

    Second, you have the problem that the left has demanded that federal judges adopt their policy preferences through new interpretations of the Constitution and statutes. Is there any policy position that liberals do not believe should simply be adopted by federal judges rather than be subjected to the democratic process, i.e. pass Congress or state legislatures? I can’t think of one.

    Given reasons #1 and #2 cited above, I find it ironic that Democrats are complaining about the “politicization” of the courts when they have been the chief architect of the environment that has led to that politicization. What is the difference today is that those policy-based federal court rulings are no longer going in the liberals favor so now they’re screaming politicization. And don’t get me started with stare decisis. Precedent for the left must be respected only when that precedent is a policy they like..

    I don’t see how expansion of the courts is beneficial to the Democrats. First, the House will almost certainly be controlled by the Republicans after the election next month so expansion is unlikely. Even if an expansion of the courts happens, it won’t take place for a few years, putting it after the next presidential election. Do Democrats really want to hand a President DeSantis (no I’m certainly not pulling for him to be elected) more judgeships to fill?

    I think it’s time to consider that the Founders’ idea of lifetime federal appointments was not such a great idea. It hasn’t taken politics out of the judicial process. Does anyone think Judge Cannon’s rulings on the Mar-A-Lago search was not driven by politics, i.e. her wishing to curry favor with Trump? If Trump gets elected in 2024, she’s perfectly positioned to be appointed to the Circuit Court of Appeals or even the Supreme Court. I think that’s what’s driving her decisions…fortunately the federal appellate courts, including the SCT, stopped her.

    What would have been a better idea is long tenure for federal judges, but not lifetime appointments. And the SCT would be so much better off with 18 year staggered terms so that every 2 years an appointment comes open. But expansion of the courts to get new appointments to offset Trump’s…that’s a really bad idea. Biden is actually filling vacancies faster than Trump did. Should Republicans push an expansion so they have appointments to offset Biden’s? No.

  4. An addendum: I recognize the article cites a number of non-political reasons why the Court should be expanded. I don’t necessarily disagree with that. But those who want to use court expansion to offset a particular President’s appointment, yes I disagree with that strategy. If the federal courts are expanded it needs to have bipartisan support and be over a period of several years.

  5. Not only does SCOTUS need to be expanded to deal with their ever increasing court dockets but the question of only TWO Senators per state is unfair to the TWO Senators in larger, more heavily populated states but also to the residents of those states. My friend in California told me during their last primary election there were TWENTY-SEVEN candidates for governor; the ballot came with a booklet with histories on all TWENTY-SEVEN candidates. Their Ballots are lengthy and time consuming to complete due to the vast number of candidates in all elections.

  6. We should look at the founders as possibly the most naive group ever to form a government. They presumed that men of good will would fill every position in the three branches of government. That’s why we have our most recent breakdown of our civic lives. I expect that they thought future lawmakers would fix whatever went wrong, so they didn’t codify or even put penalties into the Constitution for such things as dereliction of duty or violations of the constitution.

    So here we are with the January 6 Committee. They must codify so many things to ensure this doesn’t happen again. Then we have to at the very least expand SCOTUS. I hold that the number of Justices should match the number of Circuits, it’s the most rational way to set a number that can expand to keep up with growth.

  7. My family in California often report in glowing terms the voting system that state gives to its citizens. The booklets allow voters to peruse all of the information on candidates at their leisure. And the number of candidates is a reflection of a system that does not allow two political parties control the ballot. Seems good to me.
    I would not like to have the country move away from our national legislative structure. The Senate quite rightly reflects the equality of the states to each other. Congress gives the populations of each state equality to the populations of each other… in theory that is. Gerrymandering reduces that equality for all citizens. So we do need to work on that .
    In general my motto is “if it ain’t broken, don’t fix it.” The Supreme Court is broken.

  8. Lest we forget that it was another Republican president who put Roberts and Alito – two other Federalist cuties – on the bench. Irrespective of Paul Ogden’s finger-pointing, everything Republicans touch or do with regard to the law, the judiciary and economics turns to crap.

    Judge Cannon is the perfect example of how an ideologue can screw up anything and everything they touch. She has NO business being anywhere near a courtroom. And yet…

    As mentioned before, the Democrats need to rule the Senate to expand SCOTUS. It’s the only way the loonies from the right will be silenced enough so that they might actually understand what the Constitution says and what the rule of law actually means.

  9. Theresa; I wasn’t saying California has a bad voting system, I used that high number and a booklet with the ballot as an example of the numbers of population only two Senators must be responsible to and for. Their ballots for general elections are pages long and time consuming to complete due to the numbers of candidates. Takes dedicated voters to complete them, Indiana’s mid term ballot took about 5 minutes…if you have been paying attention and actually know who you are voting for. I am using the general “you” in my comment. There is always that Democratic or Republican oval to be filled in to vote for the party; I always do the individual fill in. Because I need to use the mail-in ballot, I feel like I am actually voting because I miss going to the polls.

  10. Am I the only one who bristles when Paul uses the “left” and “Democrats” interchangeably?

    Our duopoly is far from right and left. The oligarchy controls both parties along with their media channels.

    The populists outside the GOP have taken over the conservatives. However, the populists outside the Democratic Party have been silenced or told to “unify” with the party. The progressives fell asleep at the switch and went along with the warmongering DNC.

    When Trump and Fox News come out to hold our MIC accountable for its wars, you know our world has been upended. Silence on the left means complicity.

    Where are the Anti-Fascists (Antifa)? Where is the anti-war movement in the USA and Ukraine? Has the media simply snuffed out all people protesting the war?

    Since when does this country not have an anti-war coalition? The silence is a red flag.

  11. Peggy – thanks for “We should look at the founders as possibly the most naive group ever to form a government. They presumed that men of good will would fill every position in the three branches of government. That’s why we have our most recent breakdown of our civic lives. I expect that they thought future lawmakers would fix whatever went wrong, so they didn’t codify or even put penalties into the Constitution for such things as dereliction of duty or violations of the constitution.”

    As I grow even older, I am approaching a “180” in the core of my beliefs. I have always believed (or wanted to believe} that people are basically good. I am no longer sure. They are not evil; they are selfish. Perhaps, humans have evolved to this point. And, perhaps, the “ME” culture driven by technology simply rides on/amplifies that tendency. Starting the weekend on a down note…

  12. The longer I live and watch my country struggle to survive, the more it seems to me that the framers suffered from a problem many of us have. We always think the best of our fellow humans. We always expect them to be rational and to act in a way that is good and thoughtful. But that isn’t really how we are, by and large. New policy needs to take into account that people hardly ever do the right thing for the right reasons.

  13. Melinda – AMEN – thus the need for things such as: significant expansion/investment in independent oversight, required assessment of potential unintended consequences/opportunities for exploitation for laws/regulations, reduction in self-regulation by industries, etc.

  14. There is an article in the October,’22 “Smithsonian,” about J.R.R.Tolkein, that ends with a sentence that seems
    totally appropriate here: “The key message of Nümenor, as timely now, as ever, is that the lust for power leads
    to wholly avoidable disaster.”
    McConnell’s lust for power, on display for many years now, joined with Trump’s need for it–Trump lusts for things
    to grab, but needs to see himself as powerfully in charge–joined together to potentiate the disaster(s) with which
    we are left to deal.
    McConnell must never again be allowed the opportunity to be the Senate leader!
    Yes, our founders were hugely naive, imho as well, apparently believing that future legislators, judges, and maybe even
    politicians, would hold themselves to the standards by which they lived. It seems that at the time, they were the
    closest thing to oligarchy that the country had, and the Electoral College they created, meant to keep that body
    intact, has worked to that end all too well. Without it we’d have had no Bush II, no DT, and all the awful things they “brought
    forth upon this continent,” and the world.

  15. Perhaps my old World Politics professor was right when he refused to call homo sapiens homo sapiens and insisted that we be instead called “homo saps.” Perhaps the will to survive with some degree of success has evolved in some Darwinian fashion into chronic greed and the love of power over others. Whatever, we are on shaky ground today in evaluating the independence of the judiciary. We expect political strife in the other two branches of our government but expect independence in our judiciary, even though such judicial appointments are often former members of such striving political branches or those who appoint them. Asking a twenty year politician to suddenly become apolitical because he or she dons a robe may be a bridge too far.

    Cannon has company, better disguised, so what to do? There is nothing writ in stone in re the number of justices on our Supreme Court, so add four new justices to the Supreme Court and whatever the needs may be in inferior federal courts based upon caseload. Who to appoint? We have little choice under the present system, so, uh, politicians, but at least we need not make such choices dependent upon membership in the Federalist Society or a religious, racial or gender identification, thus hopefully courting the independence of that branch of our tri-partite government Madison thought he had balanced.

  16. Todd; no, you’re not the only one to object to Ogden’s “left=Democrats” simplistic right-wing verbiage.

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