Civics on the Rocks: Is the Judiciary Independent?

By Anne Trominski:

In case you were unaware, things are a bit crazy in the United States right now. In an era of shocking news stories, unheard of court cases, and generally unprecedented political events, discourse has gotten a tad tense . . . some might even say divisive.

Can we still discuss the events of the day over the dinner table? Can we realistically look to the past to deal with the problems of today? Is there an appropriate cocktail to serve for the end of times?

Three friends tackle these topics and distract themselves with other tangents in their podcast Civics on the Rocks. Steve’s an engineer, Mack’s a history teacher, and Anne’s just trying to get the mics to work correctly (with varying amounts of success). The long-form episodes are released at the beginning of each month. Living in Texas, they have plenty of political fodder to chew on, but topics cover all types of history and government. The hosts are unrepentant geeks, so they are just as likely to drop movie references as knowledge bombs but, ultimately, their goal is to try and figure out how to be engaged citizens in modern America. They’re also drinking and making cheesy jokes while doing it.

Full episodes with citations (geeks, I say) are available on their website, CivicsOnTheRocks.podbean.com, as well as all the major podcast carriers and socials.

In this episode, the trio discuss need for an independent third branch of government and the current and ongoing threats to that system.

Read the edited transcript or listen to the entire episode below. And click here for references to the facts and topics discussed throughout.

---

This episode originally aired June 2, 2025.

Anne: The question of the day: Is the judiciary independent?

Steve: The judiciary ought to be independent.

Anne: Why?

Steve: It works best when it's independent.

Mack: Well, you want judges to be insulated as much as possible from politics and so that they can make decisions based on rule of law, you know, based on the law without political considerations. Now, even though we have, in air quotes, “independent judiciary,” there's always going to be some politics involved. And founding fathers knew that. But nevertheless, they still tried to make the judiciary as independent, as insulated from politics as possible.

Steve: And I think, taking a sort of a step back, almost like from an abstract systems level, one of the points of the checks and balances that we have is that there's three co-equal branches; not two, three, because two is really not stable. You know, one can overpower the other then it's all over. You have it split three ways, you've got a lot more balancing going on. It's a lot harder for any one group to take over. So it's important that you have a third group beyond Congress and the president that is independent. And honestly, I think, I've not done a lot of comparative stuff, but most other countries, they have a judiciary, like take France or Britain wherever, but it's not at all the same sort of independence. It really, really isn't.

Mack: Well, and it’s, most countries have what you would call a civil law system. And this is civil law, not in the sense of, oh, you've got criminal cases and civil cases; civil law’s where you have a law code, and judges are, I don't want to use the word like bureaucrat or functionary or something because that sounds derogatory. I mean, judges are respected in civil law countries, but it is much more of like somebody who's working in an agency applying the law to a given situation. And I mean, actually, it's probably not that far removed from when we have regulatory agencies that may have to --

Steve: I was gonna say, like administrative, you know, law judges . . .

Mack: Yeah. But obviously for greater areas of law. But it is it is, like, okay, we've got a law code, and we have a set of facts and, you know, we apply and make a determination. And so law codes, you know, coming in Europe, in the continent of Europe, stemming from like Roman law codes, which were consolidated under Justinian and then, you know, later you had the Napoleonic Code. We were part of the common law tradition that comes from England. Where you have judges with adversarial parties and advocates and witnesses and a jury. And . . . but what happened with both us and Britain didn't happen all the same way is common law got codified into statutes, into written law. And so that is in a sense a law code, but it is still, we're still a system that was based on common law. But in any case, what that means for us is that judges do have—and I'm going to say also, even in states where judges are elected, like in Texas, about, like, it's something like half the state’s judges are elected, not all in the same way. In Texas we do straight elections, or they do, like, a governor appoints. Then you could have a negative election. And but anyway, but even in states --

Anne: Uh, we’re gonna have to circle back to what a negative election is.

Mack: Sure. Well, it's the governor appoints a judge. And if that judge is going to get removed, it takes a two-thirds vote of the people to remove the judge.

Steve: So, like impeachment but common impeachment, popular impeachment.

Mack: Yeah. Almost like a recall. And I want to say Georgia does it that way, but I might be wrong. That's sort of in the back of my head. And not everybody does it that way, but that’s a way. Whereas in Texas, if there's a vacancy in a court position, the governor can appoint somebody, but then the next go around, they've got to actually win their election. Anyway, point being that even in states where they elect judges, the judges are still regarded as having a fair amount of independence. You know, they're on the bench, at the level, the independence and power that you don't usually have in a civil law country, and that's even with us having, you know, mostly statute laws now.

Steve: So, that independence again gives them, you know, if the law is crappy—and I think one of the other things that gets, comes down to common law is just because the law was passed doesn't mean it's going to stand, because they're going to be comparing the law as the legislature passes and the president signed against the Constitution and the principles underlying common law. And they can say, no, that law is actually crap, or based on all this other information from other precedents that we have, this needs to be interpreted a certain way.

Anne: So, to kind of go through that a little more finely. The law—the ground zero of law is the Constitution.

Mack: Yes. It is the supreme law of the land, because it says so, and we ratified it, therefore it is.

Anne: And we all agreed to it.

Mack: Yeah. I mean and that's, for that you get into a political thing, you have to have legitimacy, you know, but anyway, you have to have legitimacy. And what gave the Constitution legitimacy is three-fourths of the state ratifying conventions voted to ratify, and eventually all of them did. And the Constitution, among other things, says that this Constitution and all laws that should be made in pursuant thereof, and all treaties made, shall be the supreme law of the land.

Steve: Yeah. And it goes to those the first three words, the “We the People.” And it's interesting, actually, if you read a little bit about how it got ratified and what was going on. I mean, there was a lot of debate all over. Everybody was talking about it.

Mack: And you can buy this, by the way. There's like two volume sets of debate on the Constitution. And you have, like, excerpts from the ratifying conventions and Federalist Papers and everything.

Steve: Every paper was writing about it. It was the discussion topic everywhere. I mean, it really was, it engaged the populace in looking at it, reviewing it, and ratifying it. So that's one of those things that didn't happen like anywhere else.

Anne: Yeah. So a sitting judge today, I mean, I know we're kind of speculating on how a sitting judge would think, but are they looking, when they're hearing a case or doing whatever, they’re thinking all the way back to the Constitution?

Mack: It’s going to depend on the case, because the courts, and this is one of those things in, you know, in government textbooks, it's like, you know, legislature makes the law, the executive enforces the law, and the judiciary interprets the law.

Anne: Okay.

Mack: So you can have laws, you know, written by Congress—statutes, written law—where a situation will arise that was not anticipated. And so then how do you interpret the law for this situation; or that Congress thought it was being crystal clear, but then it turned out it was like, oh, wait, there, oh, we didn't think about that. And so then, what does the court do? And that's just if you're looking at a law, and they may not have need to go—I mean, in a sense everything always goes back to the Constitution because that's the source of the court's power of jurisdiction and things like that. And to hear a case, you've got to have jurisdiction. But in terms of, like, what you're actually interpreting, it may just be a law, that's being applied.

Steve: Yeah. The Constitution to me is, like, day to day it's probably more of, like, in the background. You don't have to deal with the Constitution as a high thing, because you've got some very crystal-clear law in front of you. You've got the facts of the case are clear, and you don't have to go all the way back to the Constitution to justify something, but it underlies and empowers everything. And a lot of the times the law is being violated or charged or whatever, and the actions are so similar to other cases. And it's very well-settled law. There's clear precedent. It's enough like all the other cases went before it, they don't have to reach back and do a lot of interpretation. It's pretty dang clear. For example, you know, just to pick one at random, somebody has a court, they ruled that somebody shouldn't be deported from the country, and they go in front of a judge because the government wants to deport them. And the judge would say, “Well, no. We already said no. It's very easy. I don't have to come up with a constitutional argument. We said no. We meant no.”

Mack: Its need to be pending is severed --

Steve: Yes. So sometimes it's very simple, but it's always in the background. But really where it's, the ones that make the news and where the constitutional issues comes up is where it's a new circumstance that nobody encountered before. It's a weird whole situation that points out a flaw or gap in the law. So now you have to fall back on more on first principles of what does the Constitution say? How can we interpret the Constitution to apply? Does the law still apply in this situation? Or even one of the parties makes a new and novel argument that has never been made before. Maybe the law itself is pretty well settled, but somebody comes up with a new argument that, “Well, actually, I think this violates free speech.”

Mack: Or maybe sometimes it's not a new argument. It's an old argument, but they know that they're in front of a court that's going to be more receptive to reversing an earlier decision.

Steve: True. So, I'm not sure if now's the right time, but we can talk about how everything we talked about on the federal court now is only Article III judges. I say only Article III judges. That's what you usually think about anything about judges. Is the ones under Article III where it actually defines the judiciary, the Supreme Court, and all inferior courts, and blah, blah, blah.

Mack: But before we get into judges in the other articles, a few other things to say, and I know we've said them before, but they bear repeating. To become a federal judge, you have to be appointed by the president and confirmed by the Senate. Simple majority vote, confirmed by the Senate. But then you serve for life. And this is what makes the independent judiciary independent. You serve for life. The only way you get removed through a check or balance is if the House of Representatives impeaches you for, you know, the same thing as, you know, high crime, treason, bribery, high crimes and misdemeanors. If they impeach you for that and if in the trial of the Senate for impeachment you get expelled, you know, they vote to convict. And that's happened like a handful of times in our history that federal judges have been impeached and expelled by the Senate. But otherwise, not only are you there for life, but there's also a provision that says Congress can't mess with your salary. You cannot have a diminution of compensation while in office.

Steve: And all that is for independence. And just to be clear, that's not just for Supreme Court justices. That's every federal judge.

Anne: So that next, you know, if it's a Democrat in the White House and then a Republican comes in, he doesn't suddenly slash the pay of all the judges that [were] put in place by the Democrat. And then vice versa when, if a Democrat then comes back in the office, they can't get revenge upon the Republican-appointed judges. Okay.

Mack: Correct. That’s the way it's supposed to work. Yeah.

Anne: Okay.

Steve: So there, you can think of it as, are they independent in the ideal thing? Well, no, they're still humans, and they have a background, and they got appointed by somebody, and blahbitty blah. But they are as insulated from the day-to-day politics as you can make somebody.

Anne: So, before we go on to the next point, when you're saying federal judges, I mean, a lot of people are thinking Supreme Court, but it's not just Supreme Court.

Mack: Right. It's the federal district courts. There's 94 federal district courts. Every state is at least one federal district. But some states with higher populations have, like Texas has four. There's, San Antonio's in the Western District of Texas, Houston's in the Southern District of Texas. And so there's a total of 94 district courts. Now, that doesn't mean there's just 94 district courtrooms or courthouses. There's multiple courthouses and courtrooms within that district. It's just you have federal trial courts in that district that are like for us, Western District of Texas. And then at the appellate level, they're grouped by state. So Texas is in the Fifth Circuit, along with Louisiana and Mississippi.

Anne: And all of those judges that you just mentioned . . .

Mack: They are all federal.

Anne: . . . they're all appointed by the president.

Mack: Appointed by the president and confirmed by the Senate.

Anne: And so is it, because they are for life, so it's, like, a new president comes in and what? Every year they're like, we have this many openings?

Steve: Oh, yeah. There were a lot of new stories about how Biden was appointing hundreds of federal judges. And Trump, at a point. If you're really on the game, and there's, this is a lift. This is not easy to find the people. It takes a lot of time to find the people, convince them to go for it, get them in front of the Senate, get the Senate to take time to consider them. So it's hard, which is why sometimes there's a lot of vacancies. But yeah, you can get as many people as there are vacancies. And there are hundreds every, all the time.

Mack: And this is also where, in terms of, okay, I’m president, who am I going to pick? This is also where interest groups play a role. And for a lot of Republican presidents, the Federalist Society, you know, they had some people that were, you know, these are Federalist Society–approved, most of whom are, you know, now on the court.

Steve: Which makes it go much easier because then the president can say, oh, cool, you already vetted these. Awesome, I’ll just pass this to the Senate.

Mack: Trust this very prominent interest group, then you're good. And then there's interest groups that will recommend for, that are relevant to what Democrats want. You also have the American Bar Association, which I'm not entirely 100% clear on them, if they do an endorsement or if they do something that's more like, oh, okay, this person is not terrible.

Steve: Yeah, they do a weird, like a thumbs up, thumbs down, thumb middley, that kind of thing. But I will point, and this is a nuance --

Anne: They do red light. Green light. Yellow light.

Steve: Yeah, I think pretty much is what they do, yeah. I will say when I did the federal grand jury work, I went in front of a federal magistrate judge. Which is not appointed . . .

Mack: Which is not an Article III judge.

Steve: Which is a different thing. And they are federal judges, but they're only there for like five years. They basically are hired by the actual appointed federal judge as a helper.

Anne: Oh, okay.

Mack: To do some of the more, is it right to say procedural stuff?

Steve: Yeah, yeah, yeah.

Anne: So just to process cases through?

Steve: Yeah. Well, like, yeah, they did some of the initial hearings, they, like, received me when I went to present the grand jury findings, and that kind of stuff. So they do the day-to-day. They're not usually the ones who, they’re not going to do the big cases. They're not going to do like the trials.

Anne: Right. So if something came along that, like, oh no, this is going to cause issues, this needs some heavy lifting in the interpretation of the law, that's not going to go to the magistrate judge, it's going to go to the federally appointed, presidentially appointed one?

Mack: I mean, sometimes you'll have a magistrate appointed, like, what is it, like, sometimes there's some, like, evidence that needs some consideration or something where it's like, okay, somebody needs to devote some time to this, to give a recommendation. And, and so, but it's not, it’s . . .  I know you said heavy lifting, because, like, I don't want it to sound like what the magistrates do isn’t important, because it's not clerical.

Steve: No, it’s judge.

Mack: I mean, they are making, like, recommendations. And they have that position because judges will respect their recommendations.

Steve: But it is more . . .

Anne: But it's not for life?

Steve: Yeah. It's limited. It’s more they're hired by the judge, and it's more of a day-to-day, keep the things moving kind of role.

Anne: And they, if a judge is choosing them to help do this, it's probably one that reflects their belief system. How they interpret the law . . .

Steve: Their priorities, style.

Anne: . . . which means it's what the president that appointed them wanted.

Steve: Most likely, yeah.

 Anne: When the Senate has to confirm, is that like a committee?

Mack: Well, it usually will go to the Senate Judiciary Committee. And then, now if it's a bunch of federal judges, like district court judges, you know, they'll sort of consider things probably like in a batch, you know. Look at these people, okay, all these people are good. And then voted out of the committee, recommended the whole Senate, the whole Senate has a vote. But if it's, what gets attention is if it's a Supreme Court justice. You know, and then you have the Senate Judiciary has hearings. And back in the old days, it was going to be on TV, you know, even on regular daytime TV and on the networks.

Steve: And I think we touched on this when we were talking about military officers. It's a similar thing where very, very high level, like you're being appointed to the Joint Chiefs or something like that, you're going to go through a much more individual process through the Senate. You're going to have to go through the Armed Services Committee, and before you get recommended to the full Senate and blah, blah, blah. Same with Supreme Court justices. But if you're a, you know, colonel or whatever, you know, you're probably on a list with 400 other colonels. You kind of get a batch process through. Same thing with district judges.

Anne: Like the Senate literally votes on every judge that's appointed federally?

Mack: Yes. But, and I also want to say that, if even in the case of a Supreme Court justice that's been nominated, and a lot of this is going to end up being in the hands of whoever the majority leader is, there's a fair amount of power for what happens in the Senate. There are customary ways that the Senate does things. There's rules, but they are self-imposed. And if they wanted to, there would be a way that if you had a Supreme Court justice and it's like, no, we're just going to have an up or down vote. You know, the majority—that may go against like the current Senate rules, but they could vote to suspend the rules, and they could just, you know, push it through. That doesn't usually happen, they usually have the hearing. But I did want to say that, like, when it comes to, like, what the committees do and the internal processes, the Constitution doesn't, like, require these things. In fact, I mean, the Constitution says that each house will basically organize itself and keep a journal of its own proceedings and decide how it does things.

Anne: I kind of want to focus, the reason why I wanted to clarify that is because that's also part of the checks and balances, I would think, is that, yes, the president here, the executive branch, is putting forth these judges, which it influences who is in that position of power, even if it is an independent branch from the executive. But then the Senate gets to come into play, and they get to, you know, confirm those judges and vet them. So that is them having a point with these two other branches to keep another check and balance. And that's part of what's been built into the Constitution when we talk about checks and balances, is this interplay between the three.

Mack: Correct. Yes.

Steve: Particularly when you think once these people get voted in, they're in for life, unless you impeach them. So there's in some way extra hurdles: they got to get a president to appoint them, and they've got to get through a Senate, and they got to do all these things. Then finally, they're there. So it takes doing.

Mack: There's a few things I want to say about this though that are pretty important. So when it comes to the way the checks and balances work, first of all, in government textbooks, there's usually always a page with a nice graphic where you've got like, you know, the White House and the Capitol and the Supreme Court, and it's the checks and balances diagram, where you’ve got arrows going back and forth and separation of powers and that kind of thing.

Steve: It’s a good textbook. It has the three-ring circus.

Mack: Yeah. The problem is, is that some of the things that that diagram was, like, textbook publishers, like, in an effort to have, like, a balanced-looking diagram, put some things as checks and balances on that are not—like one of them will say that, “Oh, a check that the executive has on the judiciary is that the president appoints justices.” And when, and it's like, that's not exactly, that's more of a check on the legislature, because Parliament appointed judges, you know, like Parliament chose judges.

Anne: In England.

Mack: Yes. And having the president appoint judges where the Senate can only confirm a presidential appointment, that is really a check on the legislature to make sure that judges are not handpicked creatures of the law.

Steve: But it does make sure that the judiciary bears influence from the president.

Mack: Sure. You know, it absolutely does have that.

Steve: Check is not exactly the right word, but . . .

Mack: But that's why, like, the diagram is not, like, there's more going on there, because it's, like, and we've already said independent judiciary. Well, okay. What does it mean, independent judiciary? If there's all these checks and balances circling around, and it’s because some of those that may be circling toward the judiciary are actually checks between the executive and the legislature, because once those federal judges are in office, the only check is that Congress can impeach and expel them. And that is, again, to insulate them from day-to-day politics.

Steve: That’s a good point. They're pretty much out of reach once they're in there.

Anne: And it's a good reminder that infographics are very simplified versions of the complete story. In every situation where they use an infographic. And you should always keep that in mind.

Mack: Yeah. But again, let's go back to, and we've just said, like, okay, why is it so important to have the judges independent, be insulated from politics? So when the Constitution was in the process of being ratified, you know, we talked about that time period, and the debate that we had, that's when The Federalist Papers were being written. The original purpose was to convince the people of the state of New York, no, you really want this Constitution. Federalist 78. Federalist 78 was written by Alexander Hamilton --

Anne: Just New York?

Mack: No. Every Federalist Paper is addressed to the people of the state of New York. And, so anyway, Federalist 78, Hamilton makes the argument that having an independent judiciary, I mean, it's not just a choice, it's essential when you have a constitutional system. And he even says, because you could potentially have laws passed by Congress that go against provisions in the Constitution, and you have to have a mechanism to settle that. And that's why, so that anticipates the idea of judicial review that the Supreme Court could rule that certain laws violate the Constitution and are therefore unconstitutional. And there are even people today, though, that think that judicial review is not constitutional, that the court was wrong when it first asserted it in Marbury v. Madison. And they should just interpret what the law says. You know, even if the law goes against what's in the Constitution. And it's like, no, this was just one of the inherent characteristics of what you were going to have with the Supreme Court in a constitutional system.

Steve: It’s the only way to make it work, you know, because you've got this overarching base. Well, that's like a mixed metaphor. You know, it's the Constitution is always there, and it's always prime. Anything else has to fit --

Anne: The keystone.

Steve: Yes, keystone’s better.

Anne: Rather than overarch.

Steve: Yes. Well, but I want breadth to cover, but we'll go with keystone. It’s the keystone.

Mack: Well, we are talking about Philadelphia, Pennsylvania.

Steve: Yeah. Okay, so keystone. So, yeah. Everything has to get ultimately one way or the other, checked against the Constitution. Is it incompatible with, does it support. If it doesn’t, then it's out.

Anne: Well, that's more of a column.

Mack: Well and okay, but I'm also going to say --

Steve: Metaphors are hard.

Mack: Side note, because I've said this before, when you actually, like, look at all the checks and balances and what they go back to, it always depends on the people. It depends on us electing representatives in the House of Representatives. And even though, yes, we have the Electoral College for the president, it was even understood at the time that some states were going to have a popular vote and that's how the electors would vote, that this shit doesn't work unless we're paying attention and involved.

Steve: Well, yes, but also the people who we've elected also need to do their jobs.

Mack: Yes. For real.

Anne: Well, and so because we elect the people who appoint the judges, we are influencing the judges as well.

Steve: Yes. Well, and we elect the people who impeach the judges. So it kind of works both. I mean, really, again, every single bit of this comes back to “We the People.”

Anne: Right.

Steve: Everybody who's up there is there because the people chose them or allowed them to be.

---

Anne: This all works if everybody plays along with the checks and balances, correct? I mean, so here's the rub, right?

Mack: That's the point is, no.

Anne: If the judiciary, if the president does something and it goes through the court system and gets up to the Supreme Court, and the Supreme Court goes, nope, you can't do that under current law, that's against [the] Constitution, that's against standing law, against precedent, whatever they rule, then the president is supposed to follow what they say, correct?

Mack & Steve: Yes, yes, yes.

Mack: Now here, so, and what you're saying is, what if he doesn’t? So, and that's happened before.

Anne: Yes.

John Marshall

Mack: And I think I mentioned Andrew Jackson. Among other possibilities. He, you know, we had treaties with the Cherokee Nation that were violated during Indian Removal. Cherokee Nation successfully sued. Supreme Court said, “Yeah, we're violating a treaty, and we need to stop.” And chief justice at the time was John Marshall. Andrew Jackson famously says, “John Marshall has made his decision. Now let him enforce it.” Which is immediately the kind of thing that the House should have impeached him, and should have had a trial of impeachment, should have been convicted and expelled, except that Congress was going along with what he was wanting to do. So that wasn't going to happen. And this is one of those times where it's all going to come back to the people, because at that point it's like, do we really want a president that is bucking the Supreme Court like this and saying we're going to go ahead and violate a treaty that goes back on our word? And, well, unfortunately, most of the people in the United States at the time were like, no, yeah, cool. It means we're going to get land. So, and that's a concern. But that's also an example of how, I mean, the ultimate check is the people. And at that time, you know, people were culpable.

Steve: Well, and that’s the thing, the check goes both ways. If somebody does a thing, and if the president does a thing, and it seems to violate the law to somebody, but Congress isn't going to impeach him, Congress isn't going to hold up funding or make a ruckus or oppose it. And they have lots of ways other than impeachment to oppose a president, and they don't. And the people don't vote out to people in Congress who don't, and they don't vote out the president. Then clearly that's fine, you know, so that's the other way that people can have a check of sorts. Is validating that sort of stuff.

Mack: This is one of the reasons why I say, and I know people disagree with me, but we elect who we deserve.

Steve: Well, and it’s --

Anne: Well, I don't think, there's a bunch of people right now in El Salvadorian prison that don't deserve what they got.

Mack: No. I absolutely agree with you. But I mean, the American people as a whole. We elect who we deserve.

Steve: Well . . . I was going to go, I was going to go a different way, but same endpoint. I don't remember the quote. I think it was from Lincoln about basically the only way that the country dies is by suicide. Is that if we elect people who trample all over the Constitution and, up and down, and a Congress who allows it, and we're okay with everybody else who allows it, then we decided to trample the Constitution.

Anne: Right. So right now we, the judiciary is, in certain cases, obviously it's not across the board. We have a very conservative court right now. And they have certainly ruled in Trump's favor very memorably on certain cases. But they have now said point blank, certain actions that the administration have taken are against the law. And they can't do what they're doing. And so far, the administration has not given two fucks.

Steve: Yeah. They haven't explicitly baldface said go screw yourself, but they certainly aren't rushing to comply, and they’re moving in that direction.

Mack: Yeah. We haven't gotten to the “John Marshall has made this decision” moment yet.

Anne: Okay. Fair. We've gotten to the wait, what did you say? Busy over here with trying to become the Pope.

Steve: Sorry, breaking up, can’t hear you. Yeah. Pretty much.

Anne: So, the next step in the checks and balances three-ring circus, right, would be Congress. Now it's in Congress's court to go, hey --

Mack: To do something.

Steve: Hold on. I want to go back to the courts thing, because, yes. Because when you're saying courts, I think you were, it sounded like you were primarily referring to certain Supreme Court decisions, or --

Anne: Well, yeah. I mean . . .

Steve: There’s a lot of district and appeals court rulings over the last month or so that have really gone against the administration.

Anne: Yes, and that's true. And I don't think that's a small thing, because it's starting to add up. We're looking at a pattern of behavior by this administration that goes against the current laws in this country.

Mack: Well, it’s nihilistic, it's bad.

Steve: And we're seeing a pattern of behavior from the judiciary pushing back on it.

Anne: Yes. The one that we got all worked up about last episode, and I think it's still the one that in the forefront of everybody's mind, is the Supreme Court said, “You are violating due process,” and due process is the Constitution. It's not an amendment. It's not, I mean, it's --

Mack: It is an amendment, but amendments are part of the Constitution.

Anne: Well, okay, I thought it was part of the original Constitution, but it's not. That’s fine. Okay.

Mack: But understood to be. But that's . . .

Steve: Yeah, it was . . . It's there.

Anne: So, due process is part of the Constitution, and it's a very well-established, well-accepted thing that we all kind of know and follow, right?

Steve: To the point we take it for granted.

Anne: Oh, you're gonna argue with me, aren’t you?

Mack: Well, not argue. I just want to say that there have been, not all Supreme Courts going back the last hundred years have entirely agreed what all was encompassed by due process of law. There's not 100% agreement on it, but there's a basic agreement that it is about fundamental rights, fundamental fairness. And then the debate becomes, you know, okay, what's a fundamental right? What’s fundamental fairness?

Steve: Well, it goes to the American saying of, you know, “I'll get my day in court.” That's the colloquial version of it.

Mack: But that's the point though. Each place the due process clause is mentioned, it doesn't have to be an American person.

Steve: Yes.

Anne: Right. And so, this is a big one. Like, this isn't something that, you know, it's not like abortion where there's two very clear sides going: one that believes that's completely okay, and one that believes it's, you know, the worst thing that could ever happen. This is something that, generally, I would say the vast majority of Americans are pro.

Mack: Oh, yes.

Steve: Unabashedly.

Mack: There have been some polls in the aftermath of this that it's like, no we need, like, due process.

Steve: Clearly the vast majority.

Anne: So that's kind of why I'm focusing on the Supreme Court, but you're right. There are these rulings coming up in the lower courts that are also saying, no, you are violating established laws, and those might get appealed to the Supreme Court, even if they –

Steve: Undoubtedly they will.  

Mack: And it's not just you're violating established laws, you're violating the Constitution. Because you’re violating due process. 

Steve: Well, and the more recent, as I’m recalling a Supreme Court ruling about this, was the one that came out at 1:30 in the morning on a Saturday, you know. Which is not something the Supreme Court does. That is way atypical. It was like a 7 to 2 vote. And they didn't give the two the time to finish writing their dissent. Which that, to me, that tells you something right there. The fact all those little bits. So they are also, I think, waking up a little bit. I'm optimistic maybe.

Anne: So right now we have a judiciary that's acting independently. And the current executive branch is not showing any signs of caring. So, the next stop in the checking balances parade would be Congress.

Mack: I mean, if you have a clear decision from the court and the president clearly violating it. If you're the House of Representatives, you got to think, now's the time. But again, as a matter of politics, right now, the votes in the House don't exist to impeach.

Anne: No, no, no,  but I'm just saying if we're looking at the checks and balance structure, that would be the next logical step would that Congress would impeach him. Now, if Congress doesn't do that because as you say, politics, and we've got the majority is supporting, so far, supporting the executive branch. Then the next step in the checks and balances parade is us. It's the “We the People” going and voting, and voting out this Congress.

Steve: You will get people who will run for Congress on a platform of “I will impeach him.”

Mack: Okay, well, wait. Hopefully  . . . you will get, because this gets into not only the politics, but the ways that politics can influence the court even with it being an independent judiciary. Is the Democratic Party going to take advantage of this opportunity and actually run like a nationwide campaign during the congressional elections to say, here's what, this is what we stand for, and we want your vote and actually do that instead of fucking it up yet again.

Steve: Yeah. Well, there's also another interesting wrinkle, which I'm starting to see in some of my law podcasts I listen to, which is that there is always, in the federal court, been kind of a respect and deference toward the government in a lot of cases, because the reputation, because they’re all . . . the experience, all the things. Yeah. When you send your government lawyers in front of the judges and force them to lie, equivocate, or just don't inform them of what's going on --

Mack: Which is what's happened.

Steve: Which is literally what's happening. We're seeing that judges aren't trusting the government anymore. And what's interesting there is that's the thing that doesn't happen just for that case, that gets generalized. Judges who aren't in those cases will start to say, “Well, holy crap, can I trust the guy in front of me?” 

Mack: Yeah, I can't trust this federal prosecutor.

Steve: And so all of a sudden, the judiciary can make everything come to a screeching halt, not just the handful of cases about immigration. So the judiciary has more power, more broadly, potentially, than I mean, ultimately it is Congress that has to impeach. Judiciary can't. But judiciary can make life hard everywhere.

Anne: Yeah. Well, and I mean, talking about, you know, the respect of the government and respecting the people in these positions to come and do their job properly. I mean, that goes to the cabinet level, I would think. The people who are hiring these lawyers and hiring these people that are coming up in front of the courts, and the people enforcing the laws that we hire to do these jobs and roles are the best people for the job. That's the theory, is that the president's going to put somebody in charge of a group, like, say, the FBI, who is very qualified --

Steve: The president's going to nominate, and the Senate is going to confirm the people who are best qualified, yes.

Anne: Yes, who are best qualified.

Steve: I don’t want to let them off the hook.

Anne: And so by the time something gets challenged, like, oh, no, this group went too far or didn't do their job properly or whatever, the judge is looking at a whole line of experts, generally speaking, versus one person who thinks they got it wrong. Whereas, oh, I don't know, most recently, we're not seeing the best people being put in the positions of power, and the people who were there that were doing their jobs for [a] long-established period of time are being wholesale --

Mack: Including the librarian of the Library of Congress who was just fired.

Anne: Right, I know.

Mack: And well, and I want I want to say something about the lawyers representing the government in some of these cases who I . . .  and, I guess, technically they work in the Justice Department, but they might also work directly for the White House—whoever’s chosen to argue the case on behalf of the government's actions. They are making arguments to these judges that are the kind of thing that when you read the transcript, like every lawyer is shuddering, like, you did not just do that, you can't, like . . .  they're doing the kinds of things that you're on the cusp of getting disbarred. It's not just, like, you know, you made a bad argument, and where did you go to law school that, like, you're on the cusp. When a judge questions whether or not you—because here's the thing about the lawyers, even though you're hired by different sides or whatever, and you're arguing the case, you're considered an officer of the court, you know, of which the judge—now, you don't work for the court, but you're considered . . . And if the judge is saying you can't be trusted, or how can I trust you, you're absolutely fucked in, like, a next-level kind of way.

Steve: And not in that case with that judge. That gets generalized everywhere.

---

[1:02:47]

Steve: So if we're going to bring it back to independent judiciary . . .

Anne:  Oh, yeah. That's where we started.

Steve: Back in the day.

Anne: Two years ago.

Mack: Can insulate yourself from politics.

Anne: Just buy a very heavy coat.

Steve: “Independent” not “insulated” judiciary, but whatever.

Mack: Yeah, that's what makes them independent.

Steve: Yeah. So it's important to have that third branch to balance the other two. For example, right now. Where they're the only branch actually pushing back against executive overreach.

Mack: Yeah. The other branch is populated with cowards.

Steve: Yeah. Which I think is the important thing, it's not that they're doing anything, it's that they're just not. In fact, it's kinda fascinating how the objectives the executive wants to achieve, you think they could pass into law because they have a Congress on their side, quote unquote. But they’re not.

Mack: Well, because the point is, we want this power to be—It’s like Napoleon crowning himself. You know, we want it to be recognized that the power to do all these things actually comes from us, and we don't need Congress.

Steve:. Yes, yes. I think that's the thing. They're leveraging their influence over Congress to keep them compliant, not keep them an active participant.

Mack: Well, and that's exactly who they have in leadership positions in Congress.

Anne: Which is why in two years you should all vote. Vote them out. If they're not doing anything, put people in who will. Because . . .

Steve: Yes. And don't wait for two years. Vote in local elections. Vote in school boards, mayor --

Mack: June 7th. There’s a mayor runoff in San Antonio. And even if you didn’t vote in the general election, for the runoff you can vote.

Steve: Voting at every level counts. Honestly, it counts even more the more local the election is.

Anne: And they are paying attention to what the voters are doing, because that's all they care about is keeping their little spot in the world cozy, which is why they're being spineless twits right now anyways.

Steve: Look at the fact that Republicans refuse to hold town halls to talk to their own constituents because they know they'll get yelled at. And they can't handle that.

Anne: Yeah. And that's why, calling works. Letter writing works. I like the, I don't know if you've seen this, the encouragement of writing physical letters, because apparently they go to Congress. Each one has to be scanned. And it creates a literal physical presence in their offices.

Steve: If a hundred thousand people write one letter each, it takes you 15 minutes, some poor sod in that congressman's office has to sit and open and scan every one of those letters.

Anne: And you know, that'll be brought up at the staff meeting. So, if you want people to pay attention, that's—what was the class level in the game you were mentioning? The Obstructionist.

Steve: Yeah. Obstructionist. Yes.

Anne: That’s one way to obstruct.

Mack: We’re Level 15 Obstructionists.

Steve: Yeah. Because you know what happens when those three staffers are having to spend 24 hours a day doing nothing but scanning letters? They aren’t helping the congressman do anything else.

Mack: And don’t feel too bad for them, because they’re being paid either way.

Anne: And nobody's picking up his dry cleaning.

Steve: So, I've seen a lot of recommendations online about what to do with your congressman, how to participate, a lot of it relies on you basically being in a Blue state. Frankly, and they're kind of like, well, if you're in a Red state, you're just kind of screwed. You know what? You're not. You can still express your view to your representative.

Anne: And, you know what, the whole narrative of, like, how the system works, said a Trump would never get in office. So fuck that narrative. If somebody says, “Oh, it'll never work that way.” Clearly, they don't know what they're talking about. Because look, look what's happening now. So you want to change the system? Go ahead, change it. Do it.

Mack: Fight me.

Steve: People caring and trying to change the system is the only thing that ever has, to paraphrase.

Anne: Exactly. Here's to changing the system.

Steve: Changing the system.

Anne, Mack & Steve: Cheers.

Glasses Clink. 

---

Anne Trominski was born and raised in El Paso, Texas, but now resides in San Antonio. She graduated from Trinity University after majoring in English and Communication. She spends her dull working hours as an editor for a major publishing company and her personal time as an oft-frustrated writer and amateur podcast producer. She has written two yet-to-be published novels, countless reams of heartfelt poetry, and has tried her hand at blogging a few times. Anne is also a gastronomist, amateur chef, and student of health science. She is a constant learner and explorer and likes to drop knowledge on others like it’s hot. Most recently, she helps disseminate social science info  through the podcast Civics on the Rocks.