One of the features of the first Trump administration was the endless litigation that was intended to throw sand in the gears of the White House. Much of it was irrational and did not hold up under appeal, but that was not the point. The goal was to kill the administration with a thousand cuts. We are seeing a replay of this in round two, but the administration seems prepared for it. There is both a legal strategy and a public relations strategy for dealing with the lawfare.

This lawfare is possible due to one of the many carryovers from the post-Cold War period in which the Washington class was allowed to run wild. The inferior courts where this lawfare is being waged are packed with friends of Washington. Half of the judges were nominated by Republicans and the other half by Democrats, but all were on the list because they are friends of the Blob. Time and again we see that the judges issuing restraining orders on the admin have family in the Blob.

One result of this is the ground floor of the federal judiciary is now the first line of defense for the Blob. Anyone challenging the regulatory state knows they first must make it through this minefield. It is one way to make the cost of challenging the regulatory state prohibitive. Almost all litigation against the administrative state would fail at the first step and then go to appeal. For most potential litigants, dealing with the hyper-politicized district courts was cost prohibitive.

Mostly, the district courts have become a weird form of patronage. These judges come from good schools but were not great private practice attorneys. Most found their way into a federal prosecutor’s office, where they could make friends with the political class to angle for a position on the bench. Once on the bench, they could then lever that into jobs for friends and family in the Blob. District judges are one of the many gatekeepers for entry into the Blob.

Here is where you see the social aspect of managerialism. These judges do not have to be told to oppose the Trump admin. They just know it is their role because everyone they know hates Trump. Judge Boasberg is not defending what he has always claimed to oppose because he is a hypocrite. He is simply putting the welfare of his friends and family ahead of political concerns. He is operating from class consciousness and the class he is defending is the managerial class.

Of course, the court system has been a mess for a long time. The Supreme Court that decided Brown simply invented a new moral code to be imposed on the American people by the judiciary. The court that invented the right to buy contraceptives and abort your baby was doing the same thing. When Justice Kennedy wrote the majority opinion stating that the right to marry is a fundamental right, he did so not as a legal scholar or defender of the Constitution, but as a secular priest.

The judiciary as a priestly class is always a risk because in a liberal political order the law is the manifestation of general morality. One reason we have so many laws in public government versus private government is the morally right choice for every conceivable action must be written down so the shamans in the court system have something to point to when making their declarations. That and it is the only way to overcome the traditions of the people regarding public morality.

It is how in 1985, US District Court Judge Russell Clark began a terror campaign against the people of Missouri. He took over the Kansas City, Missouri School District, forcing the people to pay billions in taxes to underwrite his madman effort to create paradise on earth. This terror campaign was allowed to go on for a decade until the Supreme Court finally got around to ending it. Two billion dollars were spent, and thousands of lives were ruined by a single lunatic judge.

What the district court system has become is a way for the managerial class to impose its morality on the rest of us, via the court system. Since there are over six hundred district judges, there is no escaping them. Every state government must act in the shadow of what is, in effect, an ideological enforcer for the Blob. The district courts are now an ecclesiastical court for the purpose of heading off any signs of apostacy before they gain public support.

In the short term, the only remedy for the Trump administration is to fight this weird priesthood in the court and the court of public opinion. Congress could help by stripping some power from the district courts, but Republicans are useless, so no one should expect that to happen. Chief Judge Roberts could step in, but he is clearly blobbed up, so that is unlikely. His behavior in the Obamacare case made clear he acted under duress to change his position.

In the long run, the solution is to make the district court position temporary, so it loses its value in Washington. Doing a turn as a district judge should be viewed as a resume builder for someone on partner track at a big firm or maybe as a career builder for a lawyer who wants to build his own firm. District judges were supposed to handle mundane administrative tasks to free up the superior court. Making it a steppingstone position would restore that function.

In the even longer run, normalizing the judiciary means the end of ideology, because as long as we remain an ideological state, there will be people who see themselves as priests tasked with enforcing the moral claims of the ideology. The death of ideology means morality is once against rooted in the traditions and customs of the people and the law has a process for that. It is called precedent. Since before Code of Ur-Nammu, this has been the basis of the law and an orderly society.

If you like my work and wish to donate, you can buy me a beer. You can sign up for a SubscribeStar or a Substack subscription and get some extra content. You can donate via PayPal. My crypto addresses are here for those who prefer that option. You can send gold bars through the postal service to: Z Media LLC P.O. Box 1047 Berkeley Springs, WV 25411-3047. Thank you for your support!