This is because most of the judges in the federal judiciary have rejected the rule of law, and replaced it with the principle of legal positivism. Briefly, the principle of the rule of law states that the laws are to be generally applicable, are to apply to all equally, and are generally understood to rest upon a higher foundation (such as natural law) than the mere transient circumstances of politics or the whims of politicians, or even the people. The rule of law forbids the creation of “special law” that benefits only certain factions or groups. It forbids also the unlimited, or even the extensive, interference of the government into areas that rightly belong only to the private spheres of individual citizens, such as their private lives and their property. Essentially, the rule of law is a bulwark of liberty in that it serves to regulate government actions and to protect the people from intrusive and arbitrary actions of government.
Fascism, Nazism, Communism—these are all the end results of the rejection of the rule of law and its replacement with legal positivism
Legal positivism, on the other hand, rejects the principle of natural law in toto, and also therefore rejects the principle of the rule of law. In its place, positivism establishes the unlimited right of the government to basically do whatever it wants. Legal positivists view the government as the end all and be all of authority, and would reject any efforts to impose any sort of strictures upon the ability of government to achieve whatever ends it chooses. The rise of legal positivism went hand in hand with the rise of socialism and communism, enabling those systems to pursue “redistributionary justice” using whatever means they chose. Fascism, Nazism, Communism—these are all the end results of the rejection of the rule of law and its replacement with legal positivism