This article draws freely and without permission from the writings of Heather Cox Richardson, a noted author and professor of History at Boston College. She is a passionate defender of democracy in the States and a vigorous opponent of the Extreme right-wing policies that are taking over America. I trust she’d be happy with my use of her work.

At the end of June, the US Supreme Court (also known as SCOTUS for brevity) issued a number of important decisions. They decided that requiring a web-site designer to use her own words to support gay marriage violated the First Amendment’s guarantee of free speech. This use of the first amendment to allow discrimination against a protected group contradicts the Fourteenth Amendment’s declaration that states could not deprive any person of the equal protection of the laws. The decision supports the cultural policies of the Republican extreme right.

That decision was followed by a decision that attacked voter rights in Mississippi by allowing the state to deprive felons of the right to vote, which of course targets black voters, since they are more likely than white men to have been convicted of a crime. The court also wrote a decision which stated explicitly that states cannot protect minorities in the face of someone’s religious beliefs. The dissenting opinion, written by Justice Sotomayor, said of that decision “for the first time in its history, the court has granted a business open to the public a constitutional right to refuse to serve members of a protected class.”

Finally, the court ruled that President Biden’s student loan forgiveness program was unconstitutional. The forgiveness program was based on a federal law giving the secretary of education the power to forgive those loans. However, the court ruled that the decision to forgive the loans was a major decision that could not be taken by the executive branch. Professor Cox Richardson says “By saying that Congress cannot delegate significant decisions to federal agencies, which are in the executive branch, the court takes on itself the power to decide what a “significant” decision is.” She goes on to provide a quote from another observer. ““Let’s not beat around the bush,” constitutional analyst Ian Millhiser wrote in Vox, today’s decision in Biden v. Nebraska “is complete and utter nonsense. It rewrites a federal law which explicitly authorizes the loan forgiveness program, and it relies on a fake legal doctrine known as ‘major questions’ which has no basis in any law or any provision of the Constitution.”

Disturbing as it is to see the specifics of some of the Supreme Court decisions, the bigger story is the polarization and subversion of the US federal court system. The student loan forgiveness program is an important case in point. The job of the court system is to apply laws even-handedly and consistently. When the Supremes ruled that Biden cannot make a “major decision”, despite the fact that the decision was backed by a law passed by the democratically elected Congress, they stepped across the line from interpreting and implementing law to creating their own law. And that is a serious and potentially deadly attack on democracy in the US.

The impact of the Supreme Court decisions is but the tip of the iceberg. According to Pew Research data, there are three main tiers of the US federal court system: The Supreme Court, 13 appeals courts and 91 district courts. Across the entire system, more than a quarter of currently active Federal judges were appointed by Donald Trump. Many of the more egregious partisan rulings are happening at circuit court levels, where many litigants go “judge-shopping” for a partisan judge. And it says a lot about their justice system when you understand that judges are readily referred to as Republican or Democrat, Liberal or Right-wing. How can we expect an unbiased review of a case when the judge enters the courtroom with a label on his or her forehead?

In 2019, Rhode Island Senator Sheldon Whitehouse published an article on the cumulative impact of the “Roberts Five” – the five conservative judges on the Supreme Court under Chief Justice John Roberts. The article tracked decisions from 2005 through 2018 – or only half way through the Trump presidency. In that period, there were 78 cases in which this conservative wing of the court provided all five of the majority votes. Senator Whitehouse observes that “Republican appointees to the Supreme Court have, with remarkable consistency, delivered rulings that advantage the big corporate and special interests that are, in turn, the political lifeblood of the Republican Party.”

He divided those cases into four major categories. (1) controlling the political process to benefit conservative candidates and policies; (2) protecting corporations from liability and letting polluters pollute; (3) restricting civil rights and condoning discrimination; and (4) advancing a far-right social agenda.

The most significant decision regarding controls on political process was undoubtedly the “Citizens United” case which found that Corporations should have unrestricted ability to support political parties or candidates. That decision set off an enormous increase in election spending that continues to this day, where billions are being spent on each election. (I remember calculating that in the 2022 mid-term elections, American political parties spent approximately $8000 for every vote that was expected to be cast.)

However, I particularly wanted to cite the attack on voters’ rights promoted by the Supreme Court. The Voters’ Rights Act of 1965 required changes in voting procedures to b pre-approved by a court or by the Department of Justice before such changes could take effect. In 2006, the act was re-authorized for 25 years by Congress and the Senate with huge bi-partisan support.

However, in 2013, the Supreme Court over-ruled the legislators, and eliminated the pre-clearance requirements, thus precipitating a flood of attacks on voter rights. The Supreme Court, led by the so-called Roberts Five “also permitted aggressive racial and partisan gerrymandering, limited the rights of minorities to challenge racially concentrated districts, allowed purges of voting rolls that have been shown to disproportionately disqualify minority votes, and permitted voting under electoral maps that a federal district court concluded were drawn with racially discriminatory intent.” Not only is the Supreme Court reaching a number of decisions that are meat and drink to the far right, but they are doing so, says Senator Whitehouse, by trampling over the accepted processes by which the Supreme Court has always operated. He writes “as the Appendix at the end of this Issue Brief catalogues, in nearly 55 percent of the 73 cases, the conservative majority disregarded one or more of the following judicial principles: (1) precedent or stare decisis; (2) judicial restraint; (3) originalism; (4) textualism; or (5) aversion to appellate fact finding.

The Senator provides a series of examples in each of the four decision categories, and I’m not going to bore you with specifics. Suffice it to say that the Supreme Court of the United States, and very significant portions of the lower level judicial apparatus has been captured by the right wing. Lady Justice is no longer blind, but now sees through a polarized lens.

So, who do we blame for that? Donald Trump, right? No, wrong. Many of these attacks began before Trump gained office. I see Trump more as puppet than puppeteer. No, the subornation of the judiciary is the work of a right-wing organization of lawyers and law professors known as the Federalist Society. In my article on the Dark Money Conspiracy, I wrote “the Federalist Society which is described as a powerful professional network of forty-two thousand right-leaning lawyers with 150 law school campus chapters and about seventy-five lawyer groups nationally. All of the conservative justices on the Supreme Court are members.”

Leonard Leo, the executive vice-president of the Federalist Society, is said to have “played a crucial part in the nominations of John Roberts and Samuel Alito” in the George Bush administration. Under Donald Trump, Leo’s role was even more crucial. It was he who prepared a list of judges that Trump was “encouraged” to choose from, resulting in the appointments of Neil Gorsuch, Brett Kavanaugh and Amy Coney-Barrett. Leonard Leo is thus largely responsible for the ultra-conservative character of the modern Supreme Court in the US. Additionally, Leo has raised huge sums of money for his conservative causes. The Washington Post, in 2019 reported “Even as Leo counseled Trump on judicial picks, he and his allies were raising money for non-profits that under IRS rules do not have to disclose their donors. Between 2014 and 2017 alone, they collected more than $250 million in such donations, sometimes known as “dark money,” according to a Post analysis of the most recent tax filings available. The money was used in part to support conservative policies and judges, through advertising and through funding for groups whose executives appeared as television pundits. In May of 2023, Politico reported “Leonard Leo, who helped to choose judicial nominees for former President Donald Trump, obtained a historic $1.6 billion gift for his conservative legal network via an introduction through the Federalist Society, whose tax status forbids political activism.” That donation was a gift from 91-year-old billionaire Barre Seid.

And who is responsible for the Federalist Society? It was founded in 1982 by law students at Yale, Harvard, and the University of Chicago. Although it was founded by students, it was heavily funded, in its early days, by John M Olin, a billionaire associate of Charles Koch. Olin was soon joined in his support of the Federalist Society by Koch and by the Scaiffe family. The hijacking of the court systems in the United States is a direct result of the billionaire conspiracy to overthrow democracy in the United States. As always, it’s instructive to simply follow the money.

Well, that’s not Canada. That’s American justice and American politics, and do we really care? Yes, we should. The right-wing in the US is threatening, and indeed actively planning to dismantle democracy in the United States. And much as we may dislike American ego and jingoism, the truth is that the loss of democratic process in the US will lead to a more chaotic and unstable world and that is not good for anyone.

Can we do a lot about it? No, probably not. But we can try to ensure that the Canadian system doesn’t get hijacked in similar fashion. US justices are in office for life. In both countries a mechanism exists to remove a judge from office. In the US, the judge would have to be impeached by a majority in Congress and then found guilty by a two-thirds majority in the senate. Let’s face it, in the politicized and partisan US Senate, that is simply never going to happen.

In Canada, Supreme Court justices are appointed until they retire or until they reach age 75, but are “removable for incapacity or misconduct in office before that time by the Governor General on address of the Senate and House of Commons.” Even that simple fact that judges have an age limit on their appointment ensure a slightly more active turnover in the make-up of the court, and that is probably a good thing.

In the US, Supreme Court justices have recently been accused of taking lavish gifts, free travel and vacations etc. from conservative billionaires. Because of those accusations, the House of Congress has passed a bill imposing new ethics rules on the Supreme Court justices. That bill, however, has virtually no chance of passing in the Senate and becoming law. There is an existing code of ethics for lower level courts, but curiously that code doesn’t apply at the more senior levels.

In Canada, there is a written code of ethics for all Justices.

So, we have a couple of guardrails in place that may help keep our justice system on the straight and narrow. But those guardrails aren’t what is really important. What is really important is that the culture of judicial appointments in Canada is very strictly non-partisan. The history of judicial decisions in Canada tends to be very apolitical and analytical. If we ever hear that a Prime Minister is appointing a conservative or right-wing judge, or a liberal or left-wing judge, we should all stand up and scream like hell. Because we don’t want political judges. We want neutral judges. We want judges deciding issues not by their personal beliefs or prejudices, but by reasonable interpretation of the law as written, and by consistent application of precedent.

I’m sure our justice system is stressed, over-worked, subject to failure and error. But it’s far superior to what we’re seeing south of the border. We need to value and protect what we have, and resist at all costs the tendency to see what is happening in the States as an acceptable norm. It isn’t acceptable, and it should never become a norm up here.