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The takeover of the federal judiciary by radical reactionaries


Kathryn Kimball Mizelle, the federal judge who just ruled that the Biden administration’s mask mandate on commercial air travel is illegal, is a 34 or 35 year old federal district judge. She has been in that position for a year and half, despite having acquired essentially zero meaningful trial experience in her extremely brief legal career, prior to starting to run federal court trials herself. She spent basically all of her time after graduating from law school either clerking for an all-star lineup of wingnut judges, including Clarence Thomas, or doing the kind of research scutwork at elite legal institutions that doesn’t require any actual courtroom experience.

Trial experience is overrated for appellate court judges, who are basically just law professors whose opinions actually count for something, but becoming a federal district court judge without any trial experience is the equivalent of throwing somebody whose driving experience consists of a few driver’s ed classes into the middle of the Indy 500. But of course that’s completely irrelevant to the reasons why Mizelle was put in a position that, in ordinary terms, she was utterly unqualified to occupy, as indeed even the staid and cautious ABA declared at the time she was nominated.

Mizelle is a Federalist Society alumna, and a radical reactionary: for example, she doesn’t think paper money is constitutional, which was a semi-respectable legal opinion in 1870, but would be considered stark raving mad by ordinary lawyers today. But of course what ordinary lawyers think today may soon be quite beside the point, as the American legal and political system is gradually taken over by radical theocrats who think all of the 20th century and much of the 19th was just one big mistake.

I wrote about this three years ago, in the midst of the craziness of Trump’s first term:

It’s important to recognize what the right wing in this country actually wants, which is counter-revolution. And the revolutions it opposes go back both to our own, and, in a sense even more fundamentally, the French Revolution, which for all reactionaries is the root source for pernicious ideas in the modern world.

Here’s a brief practical example of the sort of conclusion flows from this: When Leonard Leo, the head of the Federalist Society, celebrates the appointment of judges who will help restore “limited government” and “constitutional originalism,” what he’s really arguing for is a radical reactionary politics: one which literally wants to make world view of 18th century Anglo-American elites the basis for contemporary social organization.

The standard Federalist Society arguments that the Constitution requires reactionary political outcomes should be understood as normative arguments for reactionary political outcomes, masquerading as formal legal reasoning. Leonard Leo, Randy Barnett, Richard Epstein et. al. want to dismantle the modern welfare state because they are political reactionaries, who present their political preferences as legal arguments, when they are actually political arguments, no different than arguments for getting rid of the estate tax.

Of course it turns out that getting rid of the estate tax is actually required by the Constitution as well. Indeed Constitution worship in general is the quintessence of radical reactionary thought, since any even halfway historically accurate interpretation of that document requires organizing society along the lines considered most appropriate by the political elites of the 18th century Anglo-American world.

That is obviously a radical vision, but it’s important to recognize that it is also the actual ideology of the contemporary American right wing, which is a radically reactionary political movement.

Fundamentalist Christianity is not compatible with a secular society by definition, any more than the ideology of the ruling class in Saudi Arabia is. Mizelle, like so many of the right wing’s shock troops, is a graduate of a small fundamentalist college, where radical reactionary ideology is treated as simple common sense.

I would discuss the utterly inadequate response of the Democratic party to every aspect of this situation, but I need to drive home while still sober.

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