Losing the Mandate of Heaven

How the priesthood of judges brough about their own demise

A Thought Experiment

Imagine, if you will, a band of religious zealots who, to escape persecution, sailed away to a new frontier. A people of a strict, insular religion, what some might consider fanatical, they had a rugged nature and deep community cohesion that allowed them to survive under harsh circumstances. These settlers expand in time, and while technically under the dominion of their benefactors in their ancient homeland, evolve a culture more and more foreign to their old people. Soon, the barriers between the two civilizations become too stark, and a war for independence is fought. The settlers win their freedom and create a new theocracy based on the writings of the priests they deemed "The Visionaries". The Visionaries write down all the sacred rituals, all their precious proscriptions, some new and some put on paper from older oral traditions.

Their entire society is structured based on this sacred document, and for a decade things are stable. Then The Visionaries begin to fight amongst themselves about what the written word actually means, and there is already risk of a schism. The Interpreters, once simply tasked with giving their recommendations based on the Holy Writ, bring it upon themselves to become the final and authoritative interpreters of the texts, circumventing even The Visionaries themselves. While a wild flex of power, it is accepted by the people solely because there is no other viable alternative.

The theocracy stabilizes, with only the occasional update to the sacred writings, brought down from on high from the mandate of the gods, serve to modify the document. Throughout the years, more complicated interpretations are required, more nuanced positions promulgated, and unique ways for the holy documents to be interpreted to be in tune with modern needs. While some interpretations make the faithful scratch their heads, they have faith in these holy men, chosen by the gods, to keep the religion faithful.

Social upheavals happen, and interpretations of the holy writings become more obfuscated, the new rulings citing past rulings on dubious grounds while creating new theological constructs unheard of before. Cracks start to show where rulings seem to contradict the plain text in favor of strange arguments, counter-intuitive constructs, and foreign texts. Soon the once relatively cohesive theocracy becomes increasingly fractured. The Foundationalists on one side demand strict adherence to past norms, and the Ascensionists preach that the holy writ is not a suicide pact, but the gods challenging us to interpret it in unique ways to grow closer to them.

The Ascensionists had almost complete cultural control, and even when the Foundationalists technically had more Interpreters than their adversaries, somehow rulings continued to support the Ascensionists. Soon, whenever the Foundationalists found themselves in power, they were always stymied in convoluted ways by The Interpreters. When the Foundationalists set an all-out attack to root out the heresy in the clergy, there was a full-throated defense in favor of the Ascensionists. It got to the point where local priests were distributing infallible edicts against Foundationalist actions, and the faithful started noticing the holy laws were not mentioned at all, and only the whims of a political sect mattered.

The Ascensionists screamed heresy as the Foundationalists declared these modern edicts did not come from the gods, but altogether corrupt clergymen who could be ignored. What was once an unheard of attack on the sacred religion came with a shrug of the shoulders as a people weary and tired of illogical mandates and repressive tyrants sighed in relief as their theocracy became dismantled.

On Modern Times

When a people decide that their sacred traditions, rituals, and institutions have been co-opted for cheap political advantage and their once infallible leadership is not only indifferent to the plight of their followers, but actively hostile, what happens?

When Pope Francis wrote a letter rebuffing J.D. Vance on his understanding of Aquinas, this would have been seen as earth-shattering to faithful Catholics just a couple decades ago, and maybe strong enough to force the entire conversation away from mass remigration. However, no one has destroyed more political capital than Pope Francis, whose papacy has been filled more with petty grievances and coddling world leaders than spreading the faith, constantly using underhanded tactics to get his way. The reputational damage to the papacy is now clear. While progressive Catholics were always fine with ignoring the Pope when it suited them, it’s come to the extent even the most conservative Catholics believe one should take what the Vicar of Christ says with a grain of salt. The cultural landscape has shifted now, with most successful churches being the ones that do the opposite of what he wants.

Protestant pastors too are finding themselves preaching to a flock that has no interest in what they say, with young men assuming these shepherds are bought and paid for by enemies of the faith. Even those who keep their hands clean of corrupt money, they see their religious leaders as ideologically brainwashed in enemy seminaries, unwilling to take the hard action necessary for the faith to survive another generation. While soft talk and open dialogue are embraced for those who mock the faith, excommunications and censure are directed at an increasingly radicalized cohort of young men. Just like the Catholics, laymen are wondering whose side these people are really on.

Entire denominations are collapsing in favor of small, tightly knit groups as faith in the elders has reached cataclysmic levels. The new, deadly serious faith has usurped the passive universalism of the previous generations, and Church hierarchies are scrambling to bring order to a people who put no credence into the words of old institutional leadership.

This crisis has now reached a fever pitch in even our more secular world. Every government has norms, rituals, and traditions that just are, never to be questioned. This has been true since ancient times. There is a mythology to a nation’s founding laws that make them seem closer to the mandate from the heavens than the writings of man.

The argument that the United States judiciary, and really any legal code, has an implicitly religious element is nothing new. This argument extends to the nation itself and, with the exception of incredibly repressive and violent regimes, depends on the mass belief that the governing structure has a metaphysical element. When Trump packed a The U.S. Constitution in with The Bible, it was gaudy as hell and probably blasphemous, but it hit conservative’s relationship to our founding document close to home.

The aesthetics tell a lot of the story, along with the ritual, titles, etc. The courtroom is often in a classical architectural style with everyone in their positions to play their delegated roles with absolute precision. The cacophony of rules, precedents, and rituals takes the form of a rite, though one where the outcome is not known. The judge is garbed in black and referred to as “your honor”, presiding in a raised wooden desk over the lawyers arguing their case.

The entire system depends on believing the judge really does have power, that the guards really will obey his orders, that his legal pronouncements actually carry weight. It’s a faith that the system works in a reasonably predictable manner, with the actors in the drama doing their duties in good faith. It’s why judges have zero tolerance for disrespect or courtroom shenanigans that try to usurp their assumed power. It’s why judges despise the concept of ‘jury nullification’ as it will destroy the primacy of power in the judge’s hand.

Still, there’s what could be called a ‘jury nullification’ at a national scale. If the judge is seen as being so outside the norms of society that no one is willing to enforce his edicts, it’s an embarrassment to himself and a blow to the entire judiciary. While judges pretend to not care about public sentiment, this is another pious lie, as every judge has a calculus of how much a population is willing to tolerate as well as a gauge of what a government is willing to enforce. While on paper their power is vast, in practical terms there are many limits.

Judges are incapable of executing their rulings, the old men and women relying on much more violent men to ensure they are enforced. When the Supreme Court ruled in Marbury vs. Madison in 1803, they essentially gave themselves, in theory, dictatorial powers. I once got into an amusing argument with a lawyer where I argued the Supreme Court could declare themselves dictator for life under the Constitution, and under the shield of Judicial Review could not be challenged. He scoffed and argued that even if they made such a ruling, they would be impeached. I retorted they could declare the impeachment unconstitutional based on their interpretation and state the Constitution demands those who voted for impeachment be put to death. I forget what he put next, but the conversation was amusing.

From a purely legalistic perspective, if a body of people have sole interpretive abilities, the actual words being interpreted can be twisted to mean anything. In real life it seems a court that tried that would be ignored, but when one looks at history there are an incredible amount of outright stupid and destructive Supreme Court rulings made out of whole cloth that were just followed. Whether you look at Marbury v. Madison, the new legal concept of Protected Classes to escape the clear wording of the 14th amendment, or Obergefell, some profoundly crazy rulings have been made based on no reasonable precedent. Even so, they were followed with only a little bit of grumbling. The rulings were sacred, we were always told, even if we didn’t agree. If one goes through the thought process involved, there was little different between a judge’s ruling and a Papal proclamation. They both stem from an appeal to a fundamental supernatural reality.

Often this had to do with the social forces the courts latched onto, especially in the Civil War era as well as the Civil Rights era. They could count on external loci of power to ensure that their rulings, no matter how outlandish, were obeyed. As political consolidation strengthened, so did the boldness in which courts made new pronouncements, essentially becoming lawmakers through their unique interpretation.

The success of courts also relies on the compliance of the general population, especially its enemies. For decades conservatives went along with court rulings, no matter how poorly argued out of a sense of principal and norms. This was based on a good faith assumption in the judge’s objectivity in reading the law, and this benefit of the doubt has ended. When one sees dubious rulings going exclusively one way for decades, and the rulings becoming more and more brazen, this implicit trust gets degraded to the point that the only options remaining is to ignore the rulings, lose most of your momentum while in power waiting on appeals to a friendlier higher court, or ignore them.

The acceleration of crazy judgements hasn’t stopped, to the extent the current administrations is dealing with a flurry of rulings with little rhyme or reason outside of the judge’s political preferences. Judges with more and more limited jurisdiction are making sweeping statements that are bringing the Executive Branch into disarray. District court judges in precincts in the middle of nowhere now think they can rule of what the President can do, stymying him for months as the ruling makes its way up the appeals process.

There is a theoretical framework in dealing with rogue judges with impeachment proceedings, but from a practical perspective they might as well not exist. While these laws are still in the books, it’s near impossible to get the political capital necessary to take them out, leaving them in a near unimpregnable position to do as they wish with no consequences.

While Andrew Jackson famously taunted the courts when they ruled against him, that could be seen as the tantrum of an uncivilized brute, and not the action of civilized people who care about the rules the Constitutions laid out. There are now modern examples of ignoring judicial rulings, the most blatant being Biden forgiving student loans even after the Supreme Court shot it down. Just like the excessive Biden presidential pardons, this is going to be seen as a cosmic blunder from the left-wing in the future. The courts have been a vanguard of progressivism since FDR, and even so-called conservative Supreme Courts have pushed the country in a left-wing direction. Diluting their perceived power gave precedence to Trump to attack the mythos of the Judiciary much harder than he might have, and the limp-wristed proclamations of “The Rule of Law” fall on deaf ears, like an incantation that has lost its power. If all these “norms”, “precedents” and “traditions” have been warped to mean you perpetually lose, many have decided it’s time to flip the game board.

The secular religion is fading, along with the stranglehold on the mind of the populace on what these religious norms even mean. Just like in the Middle Ages when clergymen’s failure to crack down on flagrant simony created an opening for counter-elites to form against the Church to create a schism, the inability of the ruling class to rein in rogue judges has made the entire process suspect. The spell is broken, and another foundational religious faith is being born.

The relationship between the Judiciary and its Priests, the people, and what could be deemed the Warrior Class in the Executive who seek to conquer and transform the government, has become openly hostile. Bonds to the shared religion of the past has been severed, and we are entering an age where only raw displays of power matter. While the system worked for a while, it’s an inevitability that as the old faith gets corrupted and subsumed, something else will take its place. It’s going to get ugly. This outcome is sad and might have been avoidable a couple decades ago, but now it’s inevitable.

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