The Work of Lawfare

It's judicial politics by another name (always has been)

Aileen Cannon, like every other judge, serves the patrons who appointed her. Why wouldn’t she?

The legal system in America has entered a yet another phase of transparency regarding its inherently political nature. While pundits decry the "politicization" of the courts, the truth is that judicial politics have been with us since the founding of the Republic. What's changed is our willingness to openly acknowledge this reality.

Consider the ruling by Judge Aileen Cannon dismissing the classified documents case against Donald Trump. Cannon, a 43-year-old Trump appointee, tossed out the entire prosecution on the grounds that Special Counsel Jack Smith's appointment was unconstitutional.¹ Critics have lambasted this as judicial overreach, but it's merely the latest example in a long history of judges using their power to advance political agendas.

This isn't to defend Cannon's ruling, which Smith has argued flies in the face of at least decades of precedent regarding special counsels. But it does highlight how the judiciary has "always already" been a political battlefield. The difference now is that we're fully dropping the pretense of absolute neutrality.

Since the early 1980s, the Federalist Society — an influential network of like-minded conservative lawyers — has played a significant role in shaping the heavily-politicized modern judiciary. During his term, Trump appointed over 200 federal judges, many of them Federalist Society members. This has undoubtedly shifted the ideological balance of the courts.

But let's not pretend this is a uniquely conservative phenomenon. Democratic administrations have long sought to appoint judges sympathetic to their causes. Remember Obama's "empathy standard" for judicial nominees? It was a thinly veiled attempt to ensure ideological alignment.

The truth is, both sides have embraced the courts as another front in the ongoing culture wars. Republicans use the judiciary to challenge regulations and abortion rights. Democrats leverage it to safeguard² voting rights, LGBTQ+ protections, and various entitlements. It's politics by judicial means, and it's been happening for centuries.