| Oct 11, 2025, 12:21 PM (22 hours ago) | |||
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The question cuts to the heart of democratic fragility: what happens when the institution designed to check constitutional violations becomes the primary source of them? When the Supreme Court systematically shields one political party from legal accountability, declares the presidency effectively immune from criminal investigation, and dismantles the administrative state's capacity to enforce laws, we face a problem without clear precedent in American history. The Existentialist Republic is a reader-supported publication. To receive new posts and support my work, consider becoming a free or paid subscriber. The challenge is structural. Courts derive legitimacy from the perception that they apply law impartially. Once that perception collapses, once a court becomes visibly captured by partisan interests, the entire constitutional framework wobbles. We are not debating close calls on constitutional interpretation anymore. We are watching the Court construct a theory of unitary executive power so expansive that it approaches monarchy, but only when Republicans hold office. The same justices who decried federal overreach for decades now defend presidential immunity from criminal process itself. This represents institutional capture in its purest form. The very body tasked with reviewing abuses of power has been staffed with individuals ideologically committed to enabling those abuses, provided they come from the correct partisan direction. The confirmation process that might have prevented this was itself already captured. The Senate, through systematic minoritarian advantages and procedural manipulation, confirmed justices who do not represent anything approaching a national consensus. The natural check would be investigation and prosecution of judicial corruption. Justice Clarence Thomas accepted $4.2 million in gifts over two decades, ten times more than all other justices combined. Dallas billionaire Harlan Crow provided luxury yacht vacations, purchased Thomas's mother's home for $133,363 while allowing her to live rent-free, and paid between $100,000 and $150,000 in private school tuition for Thomas's grandnephew. None of these appeared on financial disclosure forms. Justice Samuel Alito received over $100,000 in private jet travel from hedge fund billionaire Paul Singer for an Alaska fishing trip. Singer's firm later won a $2.4 billion settlement in a case before the Court. Alito never recused. Justice Antonin Scalia accepted 258 personal trips over more than a decade, dozens undisclosed. These are clear violations that would end the careers of lower court judges. In November 2023, the Supreme Court adopted its first ethics code in 234 years, responding to these revelations. The code has no enforcement mechanism. Justices self-police. Investigation requires a Justice Department willing to act, and prosecution requires a Court system willing to proceed. When the corrupt control the mechanisms of accountability, those mechanisms cease to function. Historical parallels exist, but they offer little comfort. When Viktor Orbán consolidated power in Hungary, he did so partly through judicial capture, packing the Constitutional Court with loyalists and stripping it of independence. The court expanded from 11 to 15 judges in 2011, creating four new seats Fidesz filled without opposition consensus. On January 1, 2012, Hungary's new Fundamental Law forced 274 judges into immediate early retirement. The Fourth Amendment to Hungary's Fundamental Law, passed March 11, 2013, annulled all Constitutional Court decisions made before January 1, 2012. Over 20 years of human rights jurisprudence simply ceased to exist. The mechanism of cardinal laws locked in Fidesz policies. These laws covering electoral systems, judicial organization, taxation, and media regulation require two-thirds majorities to adopt or amend. An opposition winning a simple majority cannot reform these areas. Fidesz needs only one-third of seats to block changes, creating what scholars term a constitutional prison. Since 2013, Hungary's Constitutional Court has never contradicted the government in any politically important case. Poland's Law and Justice party followed a similar playbook, politicizing the judiciary to the point where the European Union suspended certain legal recognitions and imposed €320 million in fines. Approximately 2,500 judges were appointed through an illegitimate process, representing roughly 30 percent of all Polish judges. The Muzzle Law passed December 20, 2019, banned judges from questioning the validity of judicial restructuring or legitimacy of appointed judges. Judges could be disciplined for referring questions to the European Court of Justice, with penalties including fines, salary cuts, and termination. In both cases, the capture was methodical: retire or force out independent judges, replace them with partisans, then use the captured court to legitimize further erosions. The difference is that those were relatively young democracies with weaker institutional traditions. The United States built its entire constitutional identity around judicial independence and checks on executive power. Watching those principles dissolve in real time reveals something disturbing: institutional norms, no matter how deeply rooted, cannot survive determined bad faith. When one political faction decides that power matters more than legitimacy, and when they control enough of the system to act on that decision, the norms seem to evaporate. The question becomes whether the American federal system contains within itself the capacity for self-correction. The answer increasingly appears to be no, at least not through conventional channels. Impeachment requires a two-thirds Senate vote, which is practically impossible in our current polarized environment. Constitutional amendment requires supermajorities that do not exist. Electoral politics cannot dislodge a Court with lifetime appointments. The Court itself has eliminated many of the tools that might constrain executive abuse. Trump v. United States, decided 6-3 on July 1, 2024, granted presidents unprecedented criminal immunity that no previous president received. The ruling split perfectly along partisan lines: all six Republican appointees voted for broad immunity, while all three Democratic appointees dissented. The Court held presidents have absolute immunity for core constitutional acts, presumptive immunity for all official acts, and no immunity only for purely unofficial acts. Evidence of immune acts cannot be used to prosecute unofficial acts and even investigating the nature of acts to determine if they are official or unofficial, is disallowed. Some say the line between official and unofficial acts is grey, but to others the distinction appears clear based on court rulings, with all Republican actions deemed official and any Democratic actions deemed unofficial and disallowed. This represents a complete departure from how the Court treated Democratic presidents. Clinton v. Jones rejected presidential immunity unanimously, 9-0, with Clinton's own appointees Ginsburg and Breyer voting against him. After Shelby County v. Holder eliminated federal preclearance in 2013, states passed waves of new voting restrictions. Subsequent decisions made discrimination progressively harder to challenge in court. Two pending cases threaten to complete this process. Louisiana v. Callais could eliminate Section 2 of the Voting Rights Act entirely, affecting 27 congressional districts where minorities currently have electoral opportunities. The Trump Justice Department has argued against the Act itself, possibly the first time the federal government has opposed it in court. A second case could eliminate private citizens' right to sue to enforce voting rights. Since the vast majority of challenges come from private plaintiffs rather than government attorneys, this would make enforcement dependent on which party controls the presidency. Each decision has split along partisan lines, creating a system where accountability becomes progressively more difficult to achieve. When Congress passes laws, it typically gives federal agencies the job of implementing them. The EPA enforces environmental laws, the SEC polices securities fraud, the FDA approves drugs. But laws cannot specify every technical detail, so agencies have traditionally interpreted unclear provisions using their subject matter expertise. The Supreme Court has systematically removed this capacity. Loper Bright Enterprises v. Raimondo eliminated Chevron deference in 2024, the principle that courts should trust agency expertise when interpreting ambiguous statutes. The doctrine had guided 18,000 cases over 40 years. Now judges make those technical determinations themselves. The Court has also established the major questions doctrine, which prevents agencies from taking any action of vast economic significance unless Congress explicitly authorized that specific action in the statute. SEC v. Jarkesy eliminated the SEC's in-house enforcement proceedings, which some see as a death knell for enforcement against white collar crime. These decisions leave federal agencies unable to effectively enforce the laws Congress passed. Regulatory frameworks remain on the books but lack the tools needed for implementation. The result is substantially weakening federal agencies' ability to enforce laws Congress passed, leaving regulatory frameworks without their designed implementation capacity.This is where soft secession becomes crucial, not as a theoretical principle but as a practical necessity. When federal institutions are captured, state governments become the last democratic response. States retain significant sovereignty under their own constitutional structure. They have their own courts, their own law enforcement, their own prosecutorial apparatus. We have some historical precedent for this. During Reconstruction, federal law enforcement was essential because Southern states refused to protect the rights of freed slaves. The federal government used direct enforcement through federal courts, marshals, and military, not reliance on state cooperation. Today the dynamic might seem reversed, but the parallel is imperfect. Modern sanctuary cities legally refuse cooperation with federal immigration enforcement under anti-commandeering doctrine, established in Printz v. United States. The federal government cannot compel state or local cooperation. But this represents states declining to help federal enforcement, not states resisting federal judicial authority. The practical implications are constrained by constitutional limits, which seem to only be relevant to non-republicans. States cannot technically refuse to recognize federal court rulings, a principle established when Arkansas tried to defy Brown v. Board of Education. But when the Supreme Court itself systematically violates constitutional principles, accepts millions in undisclosed gifts, and shields partisan officials from accountability, we face a legitimacy crisis existing precedents do not address. The precedents assume the Court acts in good faith. What states can legally do is more limited but still significant. State attorneys general can investigate financial crimes connected to gifts to justices, though federal officers claim broad immunity for official acts. Accepting luxury travel and real estate from billionaires with interests before the Court falls outside official judicial duties. At a minimum, states can do this at the state level and root out corruption, any party that might happen to be more corrupt would then have substantially reduced power at the local level.
State courts could also assert jurisdiction over state law violations by federal officials for conduct beyond their federal duties. None of this approaches the scope of the problem, but the alternatives are accepting permanent capture of single party Republican rule. The deeper problem is that this reveals a flaw in the constitutional design that the Founders did not fully anticipate. They worried about tyranny of the majority and created countermajoritarian institutions like the Senate and the Court. They worried about executive overreach and created separation of powers. What they did not adequately plan for was the tyranny of a determined minority that could capture those countermajoritarian institutions and use them to entrench power regardless of democratic will. Our current crisis stems from that design flaw. A party that represents a minority of voters has been able, through geographic distribution and procedural manipulation, to control the Senate enough to confirm a supermajority on the Court. That Court then validates further minoritarian power grabs while striking down majoritarian attempts at reform. The system becomes self-reinforcing. Each captured institution helps capture the next. Can this be fixed from within? The historical record suggests not. When courts become this corrupted, they do not reform themselves. Hungary's Constitutional Court did not suddenly rediscover independence. Poland's judiciary did not spontaneously reject political control. The corruption persists until external pressure forces change, whether through international intervention, mass mobilization, or internal fracture. The United States faces a version of this problem without the external pressure options available to smaller democracies. No international body will intervene in American judicial politics. This leaves mass mobilization and internal fracture, which in the American context means states asserting independence and citizens demanding their state governments act when the federal government will not. The alternative is accepting that a captured Court will remain captured, that justices who have demonstrated contempt for ethical standards will face no consequences, and that the constitutional order will continue its slide toward effectively permanent single-party rule at the federal level, insulated from democratic accountability by a judiciary that has abandoned even the pretense of impartiality. None of this is inevitable, but it requires abandoning the assumption that the system will correct itself through normal processes. Those processes have been captured. But the alternatives are either accepting permanent institutional capture or pursuing resistance strategies that lack clear constitutional authorization. States can investigate corruption that falls outside official duties, coordinate joint petitions for constitutional reform, and refuse voluntary cooperation with federal programs. Whether these tools suffice to check a captured Court with lifetime appointments and constitutional veto power remains uncertain. The Court's legitimacy crisis is ultimately a crisis of accountability. Institutions remain legitimate only so long as they are subject to meaningful checks. When the highest court removes itself from accountability while expanding the unaccountable power of aligned officials, it ceases to function as a court in any meaningful sense. It becomes simply another political actor, distinguished only by its lifetime appointments and constitutional veto power. The path forward requires abandoning the assumption that the system will correct itself. Some tools at our disposal include states investigating corruption, coordinating interstate compacts, and refusing cooperation with federal programs. History suggests institutional capture of this depth requires confrontation, persistence, and sustained pressure. The question then becomes, are we up for the task? |
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