Rousing the American Judiciary

by James Lindsay

Woke Marxism undermines law, and for it to succeed, it must pervert law to advance its own ends. So far, it has been extremely successful at this, from the Critical Legal Theory movement in the 1970s and 1980s through Critical Race Theory and outright legal and judicial activism. If our remaining judiciary remains unaware of the infiltration and subversion, we will probably lose our country. If it wakes up and discharges its duty more… judiciously… we can save our country the same way they’re trying to take it from us: without firing a shot, as the saying goes. Such is the power of law, and such is the power of judges who adjudicate on the law.

The issue is that judges are very busy and asked to render legal judgments on an array of cases filled with subject matter in which they are not, cannot be, and should not be expected to be experts. This represents a major crack in the legal and judicial armor that’s susceptible to legal subversion. A great deal of this subversion has already taken place in both low courts and high, though we’re also seeing a wakening judiciary quickly starting to realize the problem and its underlying nature. This rousing of the judiciary is patently visible in the Dobbs decision that overturned Roe v. Wade, especially in light of Justice Clarence Thomas’s remarks about misapplications of substantive due process in that and other decisions. We see it also in the recent Supreme Court decision about racial discrimination in college admissions at Harvard and the University of North Carolina, challenging the entire basis for the “Diversity, Equity, and Inclusion” industry by reversing much of the logic of Bakke v. Board of Regents and Grutter v. Bollinger. The awakening of the American judiciary seems to be arriving just in the nick of time.

The fact is, law is being subverted and has been subverted. This has been the result of decades of intentional activism. Aside from the direct legal activism resulting from activists taking the roles of judges, another form of subversive legal activism exists as well, one that exploits the gap in the judicial armor in two ways: by having hijacked language and expertise. Busy judges have to go significantly on domain-specific information that they are given, prepared through testimony and amicus briefs and the likes. Their domain is the law, not necessarily the domains upon which they have to adjudicate the law. In that breech, the lies of activists flourish.

This activism is definitely intentional and purposed, and its purpose is to undermine the institution of American law and turn it toward Marxist ends. Going back to one of the fathers of Western Marxism, Antonio Gramsci, Marxist strategy in Western nations has been largely subversive rather than overt. Gramsci described a Western world that is ruled over not merely by a class of people but by a powerful cultural force he alleged is produced and maintained by those people for their own benefit. This force he called “cultural hegemony,” and he said the only way to bring socialism (and Marxism) to the West would be to infiltrate and subvert the cultural institutions that generate cultural hegemony and turn them from within so they instead produce a “counter-hegemonic” view that can then trickle out into the cultural milieu and make it ripe for revolution. The five domains Gramsci identified for infiltration and capture are religion, family, education, media, and law, with a special emphasis on education because all professional activities are downstream from schooling.

Gramsci wrote this in the 1920s and 1930s, and the thesis was picked up by Rudi Deutshke, who called it “the long march through the institutions” in the mid-1960s, and Critical Marxist thought-leader Herbert Marcuse, who demanded this march from his activists in his 1972 work Counterrevolution and Revolt, which has set the stage for Western Marxist activism ever since. The goal was to infiltrate the institutions and turn them from within. Simultaneously, using Marcuse’s Critical Theory, which he adapted from his Frankfurt School colleague Max Horkheimer, the entire fabric of Western Civilization and culture was to be hauled into “ruthless criticism” and turned inside-out.

Today, the results of these two initiatives—the Long March and Critical Theory—we have a credentialed expert class and expert-credentialing apparatus (the higher education system and professional organizations) that are effectively completely captured. When students pass through, even if they are not taken in by the Critical Marxist, or Woke, perspective, they’re flooded with it such that it no longer rankles their sensibilities when they encounter it later in life. Meanwhile, the professional class of experts who might show up to inform the judiciary on crucial cases is filled with purposed and well-funded activists who make sure to render their fake-expert opinion in the best professionalese in every case of relevant importance. If judges aren’t aware that expertise itself has been tainted, they’re likely to fall for the distortions of this bogus professional cadre and the bogus studies they use to back their activist claims. Justice, the domain of the judiciary, is the victim.

This professionalese is also laced with activist language, words that have obvious everyday meanings but specialized activist meanings that are easily equivocated upon. Some key examples are words like “diversity” (which actually means “expert in Diversity as a theory”), “inclusion” (which means excluding and censoring anything that can be construed to create a disparate impact of exclusion of discrimination), “hate” (which means not giving the activists their way), “harm” (which means the psychological discomfort experienced by the activists when not getting their way), and “trauma” (which means the result of the injuries of “hate” and “harm” as described above). These words are myriad, if not legion (in the biblical sense). Without awareness that Critical Marxism has equivocated much of the language itself—take “diversity” in the context of the Bakke and Grutter decisions, for example—rendering sound adjudications is simply impossible.

Our judiciary, insofar as it still cares about this country, needs to be made aware of these two gaps so that prudence and discernment can return to their rightful positions in rendering judgments on these important cases. I’m in no way calling for judges to become experts in “Woke” language or ideological subversion. Instead, I’m calling for a growing sense of awareness that both language and expertise are at least partly captured and being weaponized so that sound judgments cannot be made on prima facie understanding of expert testimony or the plain meanings of words. The experts are often fake, the expertise manufactured to purpose, and plain meaning of words plainly not meant.

While both of these issues are extremely important for our nation’s judges to be aware of and to take into account when rendering their decisions, the issue of captured, equivocal language is particularly important. Smart people—such as judges are—are some of the most susceptible to the wizardry of equivocal language because they’re the most likely to be certain they already know the plain meanings of many words. Furthermore, simply through these linguistic equivocations, the entire meaning of a law or ruling can be changed or even reversed without changing any of the relevant wording. As an example, the Fourth Amendment protects against government seizure of property, but it does not protect against the seizure of stolen property. If, through “land acknowledgements” or whatever other Marxist manipulation, a judge can be convinced that the property held by some entity is in fact “stolen,” whether from indigenous tribes or through the illegitimate accumulation of capital through exploitation of Man or Nature, the Fourth Amendment would cease to protect that property from seizure—a trick Communist countries used again and again in their own legal contexts. All of contract law is vulnerable to this kind of linguistic exploitation as well once certain activist clauses are inserted into the contract itself or the underlying set of assumptions upon which it is based.

If we are going to save this nation and restore and establish a fair Rule of Law, the Gramscian infiltration and subversion of law must be stopped. Much of this subversion takes place by taking advantage of a judiciary that does not fully comprehend how tainted expertise, expert testimony, and language are as a result of decades of Critical activism. My hope is that this essay sounds an alarm and starts a movement to shake them awake before it’s too late.