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Is Anyone Else Frustrated by Our Castrated Federal Court System and its Inability to Enforce the Law [1]
['This Content Is Not Subject To Review Daily Kos Staff Prior To Publication.']
Date: 2025-09-07
Federal judges have become largely powerless in our current political environment.
When there is a stream of seemingly endless Executive Orders that are often clearly illegal and unconstitutional, their powerlessness becomes an existential threat to both the rule of law and to our democracy.
The first issue is that any Executive Order that is declared illegal is immediately appealed.
For some unknown reason, apparently based on legal tradition, almost all these illegal Executive Orders remain in effect during the appeals process.
Since the appeals process is GLACIAL in its speed and efficiency, illegal executive actions like directions to detain people without due process or probable cause, use the military to police civilian areas, and adding tariffs on imports in a trade war continue to be enforced.
As an example, enforcing an illegal Executive Order permitting arrest and detention is equivalent to letting convicted criminals roam the streets while their lawyers search for reasons to appeal their conviction. In both cases, freedom is granted to continue to victimize innocent people at will.
What good is a Constitution or system of laws that are enforced only after endless litigation?
Delay is a strategy that makes judges look like children slamming gavels on their kitchen tables. Their decisions carry little or no weight at present and given the lengthy appeals process and the current Supreme Court will likely never be enforced in the future.
The Justice System appears to be designed to fail.
The federal courts have been stymied, and their decisions are being systematically ignored.
The first way to fix this systemic problem is to speed up the appeals process. Any clear violation of constitutional or federal law by the chief executive needs to be put before both the lower courts and the Appeals Courts as an emergency where cases are litigated in less than a month or two, and ideally less than a week.
In addition, a lower court decision that finds clear violations of constitutional or federal law that negate the constitutional rights of a large group of people need to be enforced immediately while the appeals process continues.
The courts need to stop looking the other way as laws are broken in plain sight, saying the equivalent of:
“… don’t worry about illegal behavior by government. We may start enforcing the law in six months or a few years from now.”
This approach renders the Constitution largely worthless.
Also unfairly controlling the speed at which cases are heard is the fact that the President can request an emergency decision from the Supreme Court when other attorneys do not seem to have that right. This totally stacks the deck in the executive’s favor while other cases languish or are delayed for many months. Either take away the President’s “emergency” power or give the same power to other attorneys appearing before the Supreme Court,
The other reform needed is to drastically limit the shadow docket where the Supreme Court decisions are made without any known (published) form of legal analysis being done.
The Court can basically make pronouncements and edicts without any constitutional or legal basis and never have to justify them to anyone. The press and our legislators need to call out these dictatorial decisions and make the court and citizens aware of what is essentially an extralegal power grab by the Supreme Court.
The Supreme Court wants to maintain its legitimacy, and this is the only power citizens and legislators have to change its stream of questionable politically based decisions.
For instance, the job of the courts is to enforce the law. Making the President’s actions not subject to the law goes far, far beyond the court’s authority. Its legitimacy has been profoundly undermined by this and similar decisions that show a fawning reverence to Executive authority. It undermines not only its own authority, but also its credibility with the public.
The court’s judicial independence has become somewhat of a joke in legal circles. Public opinion needs to tell the court how profoundly dissatisfied they are with the Supreme Court’s recent politically based decisions and their ignoring legal precedent and procedures.
Lower court judges need to stand together and collectively express their dissatisfaction with the President and his wholly owned Supreme Court who have been allowed to flout or ignore the rule of law.
One last way to make the courts (and Congress) more independent of illegal executive actions is to pass legislation providing security for judges who render decisions unpopular with MAGA supporters.
A large, optionally armed security force should be made available to protect judges and congressmen (the other two branches of government) from harassment and intimidation. It needs to be controlled by Congress and the judiciary and not the President since more autocratically inclined Presidents seem to have little interest in protecting other branches of government, as we have seen during the January 6th riots.
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