The Rule of Judges

By SAM URETSKY

The Law is the true embodiment
Of everything that’s excellent
It has no kind of fault or flaw
And I, my Lords, embody the Law
W. S. Gilbert (Iolanthe)

The Federalist Papers is a series of 85 essays written by Alexander Hamilton, John Jay, and James Madison between October 1787 and May 1788. The general introduction, Federalist No. 1, was written by Alexander Hamilton and explains, “... Among the most formidable of the obstacles which the new Constitution will have to encounter may readily be distinguished the obvious interest of a certain class of men in every State to resist all changes which may hazard a diminution of the power, emolument, and consequence of the offices they hold under the State establishments; and the perverted ambition of another class of men, who will either hope to aggrandize themselves by the confusions of their country, or will flatter themselves with fairer prospects of elevation from the subdivision of the empire into several partial confederacies than from its union under one government.”

In a hereditary monarchy or oligopoly, making laws is fairly easy. Laws were passed by and for the benefit of the lawmakers, even if they seem foolish in hindsight. The sumptuary laws, the laws that ruled that only the wealthy people could wear pointy toed shoes or determined the length of swords according to rank in society, just seem silly, although false claims of wealth, education, and prior employment do have a place in modern Republican politics.

In contrast, in a democracy laws, at least in theory, should benefit all the people, or at least a reasonable majority – or else a minority that has very strong feelings on a subject. James Madison discussed this problem in Federalist No. 10: “By a faction, I understand a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adversed to the rights of other citizens, or to the permanent and aggregate interests of the community. ...There are two methods of curing the mischiefs of faction: the one, by removing its causes; the other, by controlling its effects … There are again two methods of removing the causes of faction: the one, by destroying the liberty which is essential to its existence; the other, by giving to every citizen the same opinions, the same passions, and the same interests.”

Now it’s fairly obvious that it’s not practical to get everybody to agree on anything, which is why we have the judicial branch of government. The problem there is that judges are expected to be impartial deciders. Chief Justice Roberts said “… Judges and Justices are servants of the law, not the other way around. Judges are like umpires. Umpires don’t make the rules, they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules, but it is a limited role. Nobody ever went to a ball game to see the umpire.” It’s a good line – not true, just good. Donald Trump did say he would appoint judges who would overturn Roe v. Wade – and it did appeal to a minority group with very strong opinions.

People, with rare exceptions, don’t start out with aspirations to be a judge, not even at the level of the Supreme Court. Children grow up wanting to be spies, super-models, cowboys or best-selling novelists. Wanting to grow up to be a judge is probably as common as wanting to be a CPA – or at least it was until now. In our divided nation the judges no longer call balls and strikes, they call winners and losers.

Which brings us to US District Judge Matthew Kacsmaryk, an appointee of former President Donald Trump, is considering a lawsuit seeking to block the use of medication abortion nationwide, in the biggest abortion-related case since the Supreme Court overturned Roe v. Wade last year. In the case, the “Alliance for Hippocratic Medicine” is seeking a number of actions by the court, chief among them a preliminary and permanent injunction ordering the FDA “to withdraw mifepristone and misoprostol as FDA-approved chemical abortion drugs and to withdraw efforts to deregulate these chemical abortion drugs.” The Supreme Court decided that because the Constitution doesn’t mention abortion, it’s not a right. By logical extension, anything that isn’t mentioned may be prohibited or left to the states – all you need is the right judge. Judge Kacsmaryk is the right judge. We should be planning for an appeal.

Sam Uretsky is a writer and pharmacist living in Louisville, Ky. Email sdu01@outlook.com.

From The Progressive Populist, April 15, 2023

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