The Two Marks of “Repugnancy” – Trump and Dobbs.

Posted on | April 5, 2023 | Comments Off on The Two Marks of “Repugnancy” – Trump and Dobbs.

Mike Magee

This week’s very public indictment of former President Donald Trump was a substantial moment in American history, as much for what it wasn’t (a bloody spectacle as Trump had predicted) as for what it was (an opportunity for the likes of Senator Lindsey Graham to tearfully beg FOX viewers for donations, not for Trump, but for himself.)

But in such a politically charged environment, it would be easy to miss a major civics lesson that played out in broad daylight this week. This was the week that Judicial Review as a weaponized strategy of politics came back to bite its supporters.

Our American legal system is derived from British Common Law. It is based on “Case Law”, the gradual, continuous layering on of adjudicated resolutions to real-life disputes, which together constitute our nation’s “social development unfolding through time.” Our law and our culture are built in part on prior decisions or precedents.

The system to manage these cases has evolved over several hundred years. It is a shared responsibility of municipalities, states and our federal government, and possesses the power to bring citizens to heel. Though “no man is above the law”, various checks and balances including “presumed innocence”, “the right to legal council” and “due process” are embedded in our Constitution to counter-balance the heavy weight of government.

In courts across the land, crime and punishment are married in our system, and the weight of proven guilt varies greatly based on whether an offense is classified as a “misdemeanor” or a “felony”, and whether the judgement is part of a “civil” or “criminal” case.

Trump’s alleged criminal offenses – before, during, and after his Presidency – are of course historic and significant. But lost in the glare of this weeks legal circus was a more significant legal event that played out in Wisconsin on the very day of Trump’s arraignment.

It involves the process of Judicial Review. To set the stage, dating back to the early 1600’s, the British government took pains to reinforce that laws and ordinances should take care not to be “contrary and repugnant” so as to avoid loosing the faith and confidence of those governed.

By the late 1600’s, all laws generated by the 13 British colonies in America had to be sent to England for review, and if “repugnant” (as roughly 5% were) they would be disallowed. That same word – “repugnant” – was used six different times by Supreme Court Chief Justice John Marshall in the 1803 decision Marbury v. Madison, which codified for the first time Judicial Review in this country. The Court now had the power to, in effect, declare a law unconstitutional.

This week, “repugnancy” surfaced once again in fueling an historic defeat of Wisconsin’s conservative Judicial candidate, Dan Kelly. His 10 point defeat by liberal judge Janet Protasiewicz was largely the result of the Trump endorsement of his failed run in 2020 and the reinstatement of a Wisconsin “19th century-era ban on abortions” which took effect after the recent Dobbs decision overturned Roe v. Wade.

Judge Protasiewicz publicly opposed this law as “repugnant”. In winning, her 10-year term gives control of that state’s highest court to liberals for the first time in 15 years.

This is just the latest in a string of defeats tied to two markers of “repugnancy” – Trump support and Dobbs. The Dobbs decision turned on a Judicial Review dominated by conservative judges that were “stacked” into the Supreme Court, fulfilling a campaign promise by Donald Trump that he would only nominate judges that opposed Roe v. Wade.

Court packing on a federal level, and even more importantly by Republican leaders on the state level, has tipped the power of our nation toward minority rule, allowing repugnant leaders to seize control of our legal system. That power has been used over the past decade to allow passage of laws that attack existing rights such as women’s power and autonomy over their own bodies, or construct barriers that obstruct the popular will of the people. Examples include promoting extreme gerrymandering and voter suppression, dead ending the Dream Act, or allowing citizen access to weapons of war and a permitless gun-carry law in Florida.

The size of the defeat, especially in Wisconsin swing districts that Trump easily carried in 2020, is frightening to Republican party officials. Leaders like Charlie Kirk, CEO of conservative Turning Point USA acknowledged as much saying, “Trump arraigned . . . and Democrats flip Supreme Court in Wisconsin. Very bad day. No spin, no bs. Country is in collapse. We need God and dutiful action.”

But when our Founders created a tripartite government, carefully balancing the Legislative, Executive, and Judiciary branches as checks and balances against each other, they were not counting on divine intervention to finish the job. Their intent was to limit “repugnancy” tied to “tyranny of the minority” by leaders like Charlie Kirk.

What the Founders who supported federalism could not have imagined is that in a single week, 236 years after their signing of the U.S. Constitution, the nation would tack back toward majority rule and normalcy, by winning a local judicial election in one midwestern state only a few hours after indicting a former President for felony violations of New York’s state law.

In doing so, the Republican’s subversive strategy of Trump-enabled Judicial Review has misjudged the public. By going one step too far, they have inadvertently fueled a string of defeats, led by suburban women, that is fast becoming a death spiral for their political party.