Gaslit Nation, the podcast with Sarah Kendzior and Andrea Chalupa, has often said that the judiciary is the ‘last bulwark against autocracy.’ Viktor Orban, the GOP’s vision of dictatorship in America (Tucker Carlson broadcasted from Hungary for a week in a propaganda tour) came to power by ‘eroding judiciary independence.’
The GOP is aware of the importance of judicial capture. From 2000 to 2008 W broke with the tradition of selecting judges from the ABA and instead from the highly partisan Federalist Society. Trump followed suit in 2016. Many Republicans claimed they were holding their nose while voting for Trump because he would give them the partisan judges they wanted. McConnell broke with 200 years of Senate norms by refusing to hold hearings for a year on the Merrick Garland appointment to keep a seat for the next Republican president.
Why this is especially relevant today is the Supreme Court just handcuffed Biden’s immigration policy, saying he is not free to undo by executive order, what Trump did by executive order. They didn’t rule on the issue, but did rule that his request for a stay would not be granted because he didn’t show a likelihood of prevailing on the merits. This decision, like so many in our partisan Supreme Court era (from 2000 on or so, remember the Federalist appointees began with W) was 6 to 3. All conservative appointees voting to refuse the stay, the 3 appointed by Dems saying the stay should be granted.
The remain in Mexico policy is a debacle. It’s a human rights nightmare. Those are good reasons to undo it. But it is also a product, not of congressional law but a decision by the Trump admin. The idea that polices of a previous admin should bind the next admin is anathema to democratic rule. What’s the point of elections elsewise? But Republican’s forum shopped a conservative district judge in Texas and a conservative circuit court which will be overseen by their captures Supreme Court and Biden will be shackled on immigration policy once again.
I’d say this is unconstitutional, but since 6 men and women in robes get to determine what’s constitutional or not, this is clearly constitutional. It doesn’t mean it’s not offensive, doesn’t mean it’s not a human rights nightmare and it doesn’t mean that it’s not a sign of GOP minority rule.