Words of Power

All

John Marshall, chief justice of the United States, 1801 - 1835, whose words helped ensure the power of courts.

 
On June 5th Judge Deborah L. Boardman of the Federal District Court in Maryland ordered that the shutting down of AmeriCorps be reversed, with staff hired back, and programs restored. She wrote:

If, at the end of this litigation, the government…cannot recover the funds that Congress appropriated for national service, the funds will have been spent on improving the lives of everyday Americans: veterans, people with substance use disorder, people with disabilities, children with learning differences, Indigenous communities, people impacted by natural disasters and people trying to survive below the poverty line.  Any harm the defendants might face if the agency actions are enjoined pales in comparison to the concrete harms that the states and the communities served by AmeriCorps programs have suffered and will continue to suffer.[1] 

To people who think a government focused only on commercial and technical development brings the most benefits for the people, a program like AmeriCorps can seem like a waste of taxpayer dollars, even a fraud perpetrated upon the people by bureaucrats. In reality, AmeriCorps directly benefits people and policies that put money-making first generate waste and fraud.  Focusing on people is far more in tune with the concept of legitimate government, whatever form government takes, whether democratic or monarchical.

Judge Boardman also ordered that the United States must comply with the requirement of providing notice and comment before making any significant changes in service delivery, including significant changes like the mass closure of AmeriCorps programs that occurred on April 25, 2025 and the April 15, 2025 removal of NCCC members from service. The word “comply” is in capital letters.

Not that many people know about or appreciate the meaning of the notice and comment requirement before changes in rule-making take place. It means our opinions are to be respected.  We are to be asked what we think. The government is supposed to listen to us. Such requirements can work for us only if we know about them, and when judges uphold these things, we should stand up and applaud loudly, in order to wake up others to their value.[2]

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[1] State of Maryland et al. v Corporation for National And Community Service (AmeriCorps), US District Court for the District of Maryland, Civ. No. DLB-25-1363, Order June 5, 2025.

[2] Notice and comment requirements, such as in the 1946 Administrative Procedure Act (APA), recognize our right to know what our government is going to do before it does it, and the right to say something about that first.  The APA formalizes your right to sue the government if it doesn’t do what it is supposed to do. For these things to work as they should more Americans have to know about them.

A dream – such as returning to a society at least trying to evolve more democratically and inclusively - can be realistically dreamed if it builds on things that have happened, where it has been shown what can be.  If any greatness is to be accorded the United States in the history books, it will likely not be its wealth of power or technical achievements but that it has demonstrated the concept of mutual self-governance, government of us by us, in a way that can work in the crowded world of the modern age.  It has been proven that we don’t have to go back to competitive tribes but that with the tools of reasoning we can instead reach cooperative consensus.  When we have had a well-run Democratic Republic we have advanced in many ways, and it is known that this is how we can preserve the maximum freedoms within the necessary order for sustaining life and continuing to evolve civilization.  Autocratic regimes are decidedly not the way. History shows that too much power over others is too often abused.  Until recently we were on the right path – to get the balances right so we can cease struggling against each other. This future remains before us to choose, by adopting the best practices of consensus-seeking that democratic processes provide.
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If instead people believe the lies of those who take advantage of ignorance, we find in charge someone who cares nothing for the magnificence of ideas for more equitable societies.  But we still have the freedom – the agency - to reject the false construct and develop instead a world that makes sense to us.  The current corrupt leadership is fragile and brittle in the extreme and has no legitimate foundation.  There is great strength in legitimacy, in reason, in responsibility, in relationship, all proposed to be discarded and replaced with self-dealing, impulsivity, callousness.  There is no apparent reason that people desperate to defend our systems of taking care of ourselves cannot find ways to join in asserting and reaffirming the concepts and practices of legitimacy. This will undoubtedly help.  The absurd attack on Diversity, Equity and Inclusion, for example, cannot stand before the inclusive concepts embedded in our laws. We need to bring them forth, like powerful spells, to counter bad magic.

Rude behavior to people – to whole countries, targeting of immigrants, fostering racism, antisemitism and sexism - these ridiculous dinosaurs of the past refusing to die out are not attractive to many young people who have already learned better about mature behavior towards other people.  If we accelerate the recognition of how our leaders are behaving terribly and contrast it with the beauty of real political integrity, keeping our ideals before our eyes and ringing in our ears, perhaps we can outpace the expansion of ugliness. 
Recognitions are occurring in federal courts, and words uttered there have the power to bring those discarded values back to life, if people outside of the courts hear and repeat them, and treasure their intent and meaning.   

To feel better about the possibilities for the future one can read again the words of recent Supreme Court dissents, the words that will likely one day be celebrated as a more humane perspective is resumed in our jurisprudence, a step that future generations would surely demand if they could speak for themselves.  When we think of the decision of the Supreme Court in Trump v. US, 2023 that expanded presidential immunity, we don’t need to just get upset and feel helpless and hopeless.  We can gain strength from what Justice Sonia Sotomayor said. Let people read it who haven't already - about how a president could hire a hit man and get away with it. I can imagine people talking about it in a way that would ensure that no judge would ever be picked who could rule this way again.  This is only possible to imagine if people know that she wrote:

Even if these nightmare scenarios never play out, and I pray they never do, the damage has been done. The relationship between the President and the people he serves has shifted irrevocably. In every use of official power, the President is now a king above the law.

Never in the history of our Republic has a President had reason to believe that he would be immune from criminal prosecution if he used the trappings of his office to violate the criminal law. Moving forward, however, all former Presidents will be cloaked in such immunity. If the occupant of that office misuses official power for personal gain, the criminal law that the rest of us must abide will not provide a backstop.

These words ring like an alarm bell with every illegal action the President takes.  If it is heard, things can be set right again.  The people can demand judges who will bring our President back into the realm of legality and the status of being just another person like everyone.

Or take the 2022 West Virginia v. EPA case that blocked the EPA’s Clean Power Plan that would have helped stem climate change and reduce the intensity of the storms, costs, species loss and other harms we now experience, in which Justice Kagan stated the outright fact of the hypocrisy of the majority:

The current Court is textualist only when being so suits it. When that method would frustrate broader goals, special canons like the ‘major questions doctrine’ magically appear as get-out-of-text-free cards. Today, one of those broader goals makes itself clear: Prevent agencies from doing important work, even though that is what Congress directed.

This is something all those who love the conservative judicial appointments should hear.  Do they really know anything about the Constitution?  They should ask themselves, for a fellow Justice to speak this way, could it be that there is something to it?  Then they should honestly assess their own ignorance of the Constitution and vow to learn it for themselves, and not to simply swallow a line from one side of the fence. The Constitution they should read has no fence like that, no aisle that isn’t crossed.  It was not created by parties fighting each other to see who won. It was created by consensus.

During this time in which one can easily feel despair at the turning back of the clean energy effort, staring at the truly dark and rainy clouds that do now gather more, depicting more angrily than ever the possibility of not sustaining ourselves, we can refresh our spirits by revisiting the rulings of Judge Ann Aiken of the federal district court in Eugene, Oregon, in the case of Kelsey Cascadia Juliana et al. v. USA. In 2016 she thrilled those who pay attention by refusing to dismiss the complaint of children that the government was harming them by failing to protect them against climate change.  She wrote then:

This action is of a different order than the typical environmental case.  It alleges that defendants’ actions and inactions – whether or not they violate any specific statutory duty – have so profoundly damaged our home planet that they threaten plaintiffs’ fundamental constitutional rights to life and liberty.[3]

The government then appealed this refusal to dismiss seven times until they won in 2024.  But before the Circuit Court (with some dissent) did that, Judge Aiken again refused to dismiss the case. She wrote:

Defendants maintain that, because tackling the climate crisis is complex, and no single remedy may entirely redress plaintiffs’ harms caused by climate change, the judiciary is constrained by the Constitution from offering any redress at all…Defendants contend that the issue of climate change is political in its nature, and that redress of plaintiffs’ alleged injuries must be sought from Congress….That unnecessarily narrow view overlooks one clear and constitutional path to shielding future generations from impacts of the onslaught of environmental disaster: that it is the responsibility of the judiciary to declare the law that the government may not deprive the People of their Constitutional guarantee of the God-given right to life. U.S. CONST. art III; U.S. CONST. amend. V; Marbury v. Madison, 5 U.S. (1 Cranch) 137, 170 (1803).[4]

Aiken’s rulings in this case are filled with eloquent statements about how the government has a responsibility towards the young, which is directly perceived when you read the Constitution.  The court cannot “shrink from its role”..."The judiciary is capable and duty-bound to provide redress for the irreparable harm government fossil fuel promotion has caused."  “..plaintiffs’ alleged injuries relate to the effects of ocean acidification and rising ocean temperatures, thus pleadings adequately alleged harm to public trust assets; the public trust doctrine applies to the federal government; the federal government, like the states, holds public assets, including the territorial seas, in trust for the people; environmental statutes have not displaced the venerable public trust doctrine; and plaintiffs’ claims rest “directly on the Due Process Clause of the Fifth Amendment and are enforceable against the federal government.”  Finding that the government has a trust duty to protect our atmosphere is a concept that can have great power, if people note what was said here.

When Appeals Court Judge Josephine Staton dissented from the dismissal of the case she said:

Plaintiffs bring suit to enforce the most basic structural principle embedded in our system of ordered liberty:  that the Constitution does not condone the Nation’s willful destruction.

Justices are telling us how to beat back the barbarian attack on the means we have developed over the years to manage ourselves in successful social organization.  Some courts have risen to the occasion.  This will only become more courts, and then key legislators too, if we listen and do not allow the words to go unheard in the windstorms of our wandering attention spans.  Reminders of our democratic legacy are being uttered, and they can be used, as strong and flexible materials, to anchor and guide us through political storms. 

There are great similarities now to the first time we had a political revolution in this country, after the Federalists had become seen by too many as illegitimate elitists, and dangerous to patriotic aims, to the freedoms the revolution had won.  Just like today’s suspicions about the Democrats, liberals, the Deep State, Jefferson’s Democratic-Republican party, portrayed Hamilton’s plans, (which were to make America wealthy), as a wicked plot to return to British rule.  Its use of debt was sinful.  Though Jefferson lived a life like a feudal noble, he represented the common people, walking without fanfare to his inauguration.  Federalist John Marshall, the new Chief Justice, swore him in. Later with what Jefferson saw as his “twistifications”[5] in Marbury v. Madison, Marshall established the undeniable truth that the courts say what the law is. It seems so obvious, and it had always been the understanding. But in the face of an unrestrained executive – and now Jefferson, who feared tyranny, had incredible power himself that he did use – it needed to be said.

We recall that the executive was then so powerful and the threat that he would ignore the decision so great, (and the idea was out there that he should have the right to have his own judges, too), that Marshall is said to have avoided confrontation by giving Jefferson the result he wanted in the case. Marbury never got the commission that was coming to him, but we got judicial review. 

It took a while for the idea that the executive – who the other party was often to feel was overbearing, like an illegitimate king - could be kept from being that by the judiciary. When we realize that this fundamental idea, crucial to a system that effectively represents society’s interests, had to be articulated to really be established, then hopefully we realize that we must make the effort to ensure that it remains in place. It is always tempting to forget this basic principle, when your own leader is restrained. 

A strong court system is only over time and with consistent reminding understood to be a foundational protection keeping us from the tyranny everyone but Royalists, Tories, Loyalists, and now MAGA people is afraid of.  We need the reminders of the value of consistent jurisprudence of the kind that brings out the potential of our government to foster the evolution of civilization.  The language of the judges can serve this aim if we hear it.

An effective media that covered our legal environment well enough would inform us that the horrific attack of January 6 on the Capitol continues, only with executive orders that go beyond the executive power, with disregard of the body of laws passed by previous Congresses, and with contempt for the judiciary and the people of this country and seemingly everyone not on the President’s team at the moment.  Analysts will try to assess the damage from this Administration and will never be able to find all of it.  But we don’t need to know the amount in order to know that we must change course.  Fighting everyone is not a plan.

The Administration is fond of stating that what the President does represents the people’s will. But even if this myth were remotely true, it would only be a moment in time, a grab-sample.  A long time series is necessary, and much discussion and thoughtful deliberation, to know the people’s will, even to help the people to know what it is.  Ancient fears about democracies involved worries about inconstancy.  Through respect for what everyone thinks, not just the party that won, democracies find the stability that allows peace and prosperity.  Warlike party politics prevents this.

The laws in place before the election, that this Administration prefers to ignore, have not disappeared.  They are more important than ever, but only if we see that and rise to say so.  The judges reversing the illegal actions of this Administration are writing a new literature of democratic liberation from tyranny.  The Republicans are saying that the party that wins wins the chance to rule, but most of our judges are pointing to the great body of law that actually does a much better job, however imperfect, in serving us, all the people.[i]  These judges will not succeed in their task of protecting our system unless we pay attention, appreciate, support and uphold them as they uphold our only defense.  Then we will be free to work together to fix our system, having learned not to believe people who say they will fix it for us. 
 


[3] Quoted in https://www.bu.edu/igs/2016/11/17/the-kelsey-cascadia-rose-juliana-decision-a-ray-of-light/.

[4] Civ. No. 6:15-cv-01517-AA, filed December 23, 2023.  References omitted from the quote.

[5] Noted in Joseph Ellis’ American Sphinx.


[i] The party that places fighting the other as its goal instead of work that benefits all, is illegitimate. Madison warned us of factions in Federalist 10 and upheld the value of preventing the concentration of too much power in any one group, of not allowing even a majority to oppress others.