JUDICIAL ACTIVISM ON THE RIGHT AND LEFT IS THREATENING THE CONSTITUTION

BY THOMAS B. GRIFFITH

he United States could have created a monarchy. Just imagine the portraits of T George Washington holding a scepter. Or the framers could have created an oligarchy of philosopher-kings, or even a theocracy with clergy creating laws.

But they didn’t.

They framed a Constitution instead, outlining a remarkable — albeit intricate — process for rule-making. The laws of the land wouldn’t come from a king or a priest, but from “We the People” through duly elected representatives.

Strikingly, judges played no role in this lawmaking process. This wasn’t an oversight, but rather a central element of the design.

Judges don’t make laws. They resolve disputes by applying the rules created by “We the People.” Supreme Court Justice Elena Kagan got it just right when, at her own confirmation hearing in 2010, she flatly rejected a senator’s suggestion that there could be some cases in which the judge might rely on her heart.

It’s “law all the way down,” she insisted.

So, when political leaders, judges or pundits treat the judiciary as simply another legislative body but with funny-looking robes, they do the republic great harm. Call it judicial activism, legislating from the bench or just plain bias — all of it undercuts the nation’s faith in the rule of law.

During her confirmation hearing, Justice Amy Coney Barrett was criticized for refusing to share her personal views on hot-button topics such as abortion, immigration and the Affordable Care Act. Many assumed she was simply hiding a controversial right-wing agenda. These assumptions are not only cynical, but they also display a fundamental misunderstanding of a federal judge’s role.

During my own confirmation proceeding in 2005 to the United States Court of Appeals for the District of Columbia Circuit, I received plenty of advice on being a judge. One suggestion came from a colleague who served as a law clerk on both the court I was set to join and the Supreme Court. If anyone knew what it took to be a good judge, I thought, it was surely this friend.

On his first day as a clerk, the judge for whom my friend was working explained how he decided cases. “First,” the judge said, “I learn the facts of the case as best as I can.” People deserve to have a judge who knows their circumstances. “Next,” the judge went on, “I think long and hard about the just result, the fair outcome. Once I’ve figured that out,” he declared, “I look for law that will support my decision.”

That’s how a judge should go about his work, my friend concluded. I thanked him for his counsel, but as I hung up the phone, I vowed to do my best to follow the first part of his advice and completely reject the second part.

As the late professor Herbert Wechsler of Harvard observed, “the deepest problem of our constitutionalism” is when courts function as a “naked power organ.” That happens when judges decide cases based on their own personal politics. This undermines what Yale’s Akhil Amar dubs one of our fundamental liberties: the people’s right to determine the laws by which they’re governed.

This is an important point lost in our current discourse on the role of judges. In 2018, Chief Justice John Roberts took the unusual step of responding to President Donald Trump’s disparagement of a judge’s ruling because he was appointed by his predecessor. “We do not have Obama judges or Trump judges, Bush judges or Clinton judges,” the chief justice said at the time. “What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.” The chief justice’s rebuke could have just as easily been directed at the Democratic senators who tried to make Barrett’s confirmation into a hearing about the wisdom of the Affordable Care Act.

A recent survey found that nearly two-thirds of Americans believe that Supreme Court justices base their decisions primarily on the law, not on politics. Those who persist in describing judges in partisan terms undermine public confidence in “government of laws and not of men.” Even in the best of times, confidence in the rule of law is fragile. In these times, there’s no question that our political leaders and commentariat must do better — and so must we.

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Neuropathy 101

Burning, tingling or numbness often leads to a diagnosis of neuropathy, yet in many cases it’s not. Until recently, doctors were taught that neuropathy is neurological condition that only gets worse. In recent years, neuropathy is being viewed as more of a vascular disease (related to poor circulation) rather than a nerve condition. There are different types of neuropathy, including vascular neuropathy.

We’re able to do a more extensive exam to evaluate circulation in the foot to determine if there may be a blockage in the blood vessels below the ankle. A blockage can limit blood flow and without proper blood supply, the tissues and nerves don’t get the oxygen and nutrients they need to function properly. This may be the cause of symptoms like having to rest when taking a short walk or constant leg pain or cramping.

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Just treating the symptoms is my biggest concern with traditional treatments. If we don’t find out what’s causing the problem, all we are doing is suppressing the symptoms allowing the condition to progress. If we can increase the circulation, oxygen and nutrition can get to the affected nerves and regeneration may occur.

It’s best to make an appointment at the first signs of a problem. But it’s never too late seek help. There are new treatments being developed all the time, so it’s important to learn if there is another option available for you.

BY SOFIA JEREMIAS PHOTO ESSAY BY MARC PISCOTTY

For the past 15 years, two billboards have stood on the city limits of Flagler, Colorado, waiting to greet those who may be looking for a place to land. From 10 feet in the air overlooking I-70 and Flagler, the two signs deliver their proclamatory message: “Got Land! Got Water! All we need is you.”

Flagler is a rarity in the West — it’s offering land without a price tag to someone willing to stake a future in the town.

Situated in eastern Colorado, this small town is an agricultural community — akin more to the tilled-and-planted Midwest than the Rocky Mountain reveries most envision upon hearing “Colorado.” The ground is flat, and most houses are separated by a mile or two of grain fields and grassland for cattle. The two main employers in town are a grain co-op and bird seed factory. It’s the kind of small, blue-collar town that residents are quick to compare to Mayberry — the idyllic and sleepy setting of “The Andy Griffith Show” in the 1960s. A trip to the post office turns into an impromptu social event, and shopkeepers know their customers by name. The business district spans one block, and none of the stucco buildings stand higher than two stories tall (with the exception of the grain silos). In Flagler, you don’t only know everyone in town — you also know who everyone’s grandparents were.

The people of Flagler are proud of how much it resembles towns of a bygone era, but they also know the peril of staying the same. That’s why the town has 480 acres of free land available for business development. The plot sits right next to town — within city limits — and it’s empty save for the three wells that led Flagler to purchase the land and a two-track gravel bed railroad spur running along the south side.

So far, Flagler hasn’t found the right taker. Town Clerk Doris King says a few deals have almost come through, but have fallen apart for one reason or another. Tom Bredehoft, Flagler’s mayor, has taken the disappointments in stride. “We’re just waiting for, or hoping and wishing for any type of industry to come in and put their business on the land.”

Small towns across the country have struggled to maintain their populations as jobs — and the next generation — have migrated to cities. “If you weren’t born into a farming family, then there’s just not much else around here,” King says. But Bredehoft and King think the town has a lot to offer, for the right person or business. Unlike the booming parts of western Colorado, life is slower in Flagler, there’s not many tourists, and the sense of community is strong. “The thing I like about it is I could make five phone calls and tell ’em that you were here down on your luck. And I could have meals or gas money, something, to help you within an hour,” King says. “That’s just the type of people they are here.”

Kit Carson County, where Flagler is located, was one of 11 rural counties in the state that saw a decline in population since 2010 — it lost 14% of its people during the same time period. But despite the losses, Bredehoft still believes the town is doing something right. In 2012, a Subway shop opened on High Street, right next to the liquor store and across the way from the Loaf ’N Jug gas station. To Bredehoft, having a franchise store open up was a sign of a boon to come. “That’s been a big thing. ... Once you get certain known businesses in, other ones come in.”

Bredehoft believes in bringing in business — literally. He opened the I-70 Diner in 2007 after finding the building on a dirt lot in Fargo, North Dakota. He had it trucked down on six different semis. And with the help of two cranes, all six pieces were put back together in a day. Today, the diner is easy to spot thanks to the bright pink Cadillac spinning on a 30-foot pole, the glinting chrome doors and the smell of cooking chili (the diner’s specialty).

Flagler’s residents’ willingness to reincarnate has kept the town from disappearing. “Our Main Street’s never looked better in the 49 years that I’ve lived here,” Bredehoft says. “We just want to keep everything we have.”

And it seems that, just maybe, they will. Since the pandemic hit, more people from Denver and the surrounding suburbs have moved into town, according to Tami Witt, a realtor and member of city council. “I’m just really proud of what our little town is doing. And our efforts are starting to pay off,” she says.

But — at least for now — the lot the town is offering for free looks a lot like most of the land in Flagler: flat and full of grain.

BY TESS WEAVER STROKES

ristin Weber of Boulder, Colorado, a 47-year-old mother and business owner, tried backcountry skiing last season for the first time. She K fell in love with the solace and solitude the sport provided — and with the way ascending a mountain (on skis under her own power) made her feel physically and mentally.

To make backcountry skiing a regular part of her winter, she invested. She bought a pair of women’s all-mountain skis at a garage sale, ordered Dynafit alpine touring bindings and boots online, and signed up for a three-day Level 1 avalanche course in nearby Rocky Mountain National Park. Even though the new setup and education were a financial stretch, she knew her own legs were more of a guarantee than lift-accessed skiing this winter.

“With COVID numbers already on the rise this fall, having a self-propelled way to go up the mountain felt key this ski season,” Weber says. But with everyone looking for solitude, won’t backcountry skiers and snowboarders just end up in a crowd full of loners?

Leading up to ski season, avalanche education courses in Bozeman, Montana sold out; part-time mountain-town residents in Aspen, Colorado, relocated to their second homes; urban buyers scooped up ski-town real estate in places like Jackson, Wyoming to work remotely; and ski resorts such as Vail announced modified operating plans and reservation systems. It feels a little like a beach town stacking sandbags ahead of a hurricane. But this time, the preparation is for a wave of people in a place that can’t stand up to the surge.

Avalanche forecasters and educators worry about increases in human-triggered avalanches, retailers expect new record sales to top last season’s record sales and ski guides are altering their operations to run safely. Meanwhile, medical professionals warn about backcountry injuries burdening the health care system, and conservationists raise concerns ranging from bighorn sheep population decline to watershed pollution. But one thing everyone agrees on? Increased use this winter will profoundly affect the backcountry forever.

Weber’s path into the backcountry is similar to many other skiers and snowboarders: an interest that’s been building for years due to resort crowding — paired with high prices, curiosity and fitness goals. All of this was accelerated by a pandemic changing the ski area experience and promoting social distancing.

According to Snowsports Industries America, skiing and snowboarding participation is relatively flat year to year, while backcountry skiing and snowboarding continues to grow exponentially.

That’s partly because two of the barriers to entry — specialized gear and education — have been lowered. According to market research firm The NPD Group, sales of backcountry equipment and accessories were trending up all season (it’s the only category in snowsports that’s been steadily growing for a decade) but spiked in March 2020 when ski resorts shut down. That’s when sales for Alpine touring skis (which backcountry skiers mount with bindings that allow their boots to come up and down as they walk uphill) jumped from a 34% increase over last season to a 60% increase. A majority of retailers around the country sold out of splitboards. And online sales of skins (the strips of adhesive material affixed to the bases of skis or splitboards to allow them to glide uphill but not slide down) increased 134% over the previous year.

That’s good news for both online retailers and the shrinking population of brick-and-mortar ski shops that haven’t been driven out of business by the internet. In gear-intensive sports like backcountry skiing and backcountry snowboarding, many participants — both new and experienced — need shops and the professionals who run them for boot sizing, ski mounting and tuning up gear. Jason Borro of Skimo Co in Salt Lake City says his retail shop is now growing as fast as his e-commerce site. Due to pandemic-era demand, Skimo doubled its floor space — creating room for socially distanced boot fitting — and hired five more employees.

Colorado’s Cripple Creek Backcountry opened its fifth store, in Denver, in November due to COVID-19-era demand. “Last spring, there were a lot of people on ski vacations who showed up when the resorts closed,” says owner Doug Stenclik. “They’d come to us and say, ‘We hear this is another way to do it.’ This year, it’s a lot of people who rediscovered trail running and biking over the summer and developed a new appreciation for the outdoors. They want to apply their fitness to a new sport.”

Additionally, professional guiding services and avalanche research centers have grown their educational classes and resources — including online classes and more small, outdoor classes — to meet increased demands. AIARE (American Institute of Avalanche Research and Education), the organization that developed standardized curriculum for avalanche courses, says demand came in earlier than ever this year for many of its 114 providers, with some seeing a 100% growth from last year.

But while the community grows, the wilderness areas where locals can safely recreate cannot grow with it. When Colorado ski resorts shut down last March, hundreds of vehicles parked dangerously along mountain passes, blocking roads used by emergency responders, maintenance crews and avalanche forecasters.

Wyoming’s Teton Pass suffered crowding issues long before the pandemic. According to the Jackson Hole News and Guide, Teton Pass sees more than 100,000 ski runs a year, which cause human-triggered avalanches, parking conflicts and pedestrian traffic on a highway connecting Teton Valley, Idaho, and Jackson Hole, Wyoming — which is vital to thousands of commuters. In Utah’s Little Cottonwood Canyon (which holds 64 avalanche paths) stakeholders are currently divided over how to mitigate traffic from the 1.2 million vehicle trips and 2.1 million visitors it receives each year. Proposed ideas include widening the road, building gondolas, increasing parking lot space and

increasing local bus fleets — and each solution has sparked its own issues.

The increased popularity of backcountry touring is a double-edged sword — bringing welcomed business to local ski shops and offering folks new to the sport an opportunity to get exercise and appreciate nature — but perhaps at the expense of safety, both skier and public.

Beyond the resort boundary, there is no ski patrol to bomb cornices, assess a route’s safety, or carry out a skier with a broken tibia. Backcountry skiing is a matter of life or death. The sport is synonymous with avalanches — which took the lives of 11 skiers and snowboarders in the U.S. last season, according to the Colorado Avalanche Information Center, three people died in Colorado in a matter of two days in December of 2020. Even small slides kill. In April, an avalanche in Colorado measuring only 8 inches deep and 100 feet wide was responsible for the death of a 30-year-old skier.

In what comes down to a numbers game, an influx of users into the backcountry will certainly increase the risk of human-triggered avalanches this season. Last March, after chairlifts stopped spinning, the Utah Avalanche Center reported 30 observations of human-triggered slides in just three days, contributing to more than 100 human-triggered avalanches across the state between mid-March and the end of April. At the onset of the lockdown, skiers triggered seven slides in eight days in Telluride, Colorado, prompting rescues that strained medical resources (even occupying a bed in an intensive care unit).

This kind of avalanche activity is a major concern from a public health perspective — creating a reality where resources that are needed in the front country will be directed towards the backcountry, says Kim Levin — an ER doctor, Pitkin County, Colorado, medical officer and avid backcountry skier. “Out of respect for this pandemic and the stress it’s putting on already taxed resources, now is the time to be self-reliant and accountable. It’s not the time to take risks.”

When Utah ski resorts shut down last spring, Utah Avalanche Center greatly increased its social media output, providing a surplus of basic avalanche knowledge to entry-level users. They livestreamed education talks, raised its messaging about the danger of avalanches, conducted media interviews, and provided information about online avalanche education opportunities. And they’ve kept that up this season. Preseason, the Colorado Avalanche Information Center launched an initiative called The Forecast Pledge, with a goal for every backcountry user in Colorado to pledge to check the avalanche forecast before heading out. The organization is offering online versions of its free, youth-focused know before you go programs this season. And while virtual avalanche education is a start, most educators see the necessity of learning in the field.

While avalanches are the primary concern, they are not the only one. Backcountry skiing is inherently a socially distanced sport, but bigger crowds at backcountry trailheads, parking lots and access points this season means parking could overflow onto busy roads and increased trash and human waste could impact watersheds. And a more crowded skintrack means added human-wildlife interactions. To avoid crowds, many experienced backcountry skiers are pushing further into remote areas, affecting fragile winter habitat. For example, according to Wyoming Game and Fish Department biologists, backcountry skiers are one of the main threats facing the dwindling Teton herd of bighorn sheep. In a University of Wyoming study, GPS data collected over three winters implies the more backcountry skiers enter high-alpine bighorn sheep habitat, the more bighorn sheep keep moving, taxing their precious winter reserves. The study suggests that as little as one skier a week can force bighorn sheep into less-ideal habitat.

So, how can you get out and ski or snowboard safely if you’re not planning on riding lifts? Stenclik reports that about half of Cripple Creek’s clients are buying touring gear to skin up ski resorts, where, for the most part, they don’t have to worry about some of the main necessities of backcountry skiing: avalanche gear, route finding and finding a backcountry partner.

“You can enjoy the sport of ski touring without making life and death decisions in avalanche terrain,” says Stenclik. “We ask, ‘Do you ever want to go into avalanche terrain?’ About half say no, one-quarter say they want to learn in a controlled environment and the final quarter are interested in skiing in the backcountry.”

Colorado’s resorts are known for lenient uphill skiing policies, but in Wyoming, Utah and Montana, many ski areas discourage or forbid it. This season, even resorts that do allow uphill traffic are limiting routes and hours and blacking out busy periods.

Enter Bluebird Backcountry, located on Colorado’s Continental Divide near Steamboat Springs. Bluebird is a “backcountry resort” that enables 200 skiers and snowboarders guided or unguided human-powered turns in 4,200 acres of terrain — 1,200 that’s controlled by a ski patrol. At the time of publication, Bluebird had sold all but eight of its 500 season passes (they sold half in the first 48 hours). In last year’s two-week test period, 40% of Bluebird skiers had never skied in the backcountry. “We are trying to solve a problem by creating a less risky place to enjoy all the fruits of backcountry skiing,” says co-founder Erik Lambert. But even Bluebird, which is naturally able to manage numbers and risks, could be affected by COVID-19 this winter.

Regardless of if you are touring uphill at a resort or in the backcountry proper, there is something that we can all do to keep each other and the wilderness safe. Utah Avalanche Center’s Mark Staples warns against “sending it” this season. “It’s not the season to focus on charging hard and riding the raddest lines,” says Staples. “Oftentimes what we see is that one’s ability in a sport doesn’t match up with one’s avalanche skills. Use this season as a learning opportunity.”

Backcountry skiing safer terrain still awards the same lung-busting, leg-burning, calorie-blasting workout on the way up. But, when you’re in a flow state, hearing nothing but your breath and your skis sinking into the snow, the activity feels far from exercise. Based on firsthand knowledge, frolicking in the powder through a beautiful landscape does wonders for perceived effort levels. Many backcountry skiers report benefits beyond the physical, such as a strong connection with nature, lower anxiety levels, improved mood and stress reduction. As Cripple Creek’s Stenclik says: “When things in society get a little uncertain, people find a lot of comfort in getting into the backcountry. It’s an exciting byproduct of this tumultuous time.”

Even for someone like Weber, who admits her risk tolerance is low, the positives of backcountry skiing — the elusive combination of tranquility and exertion — outweigh the challenges. So, she’ll learn as much as she can from experts in the field and experienced friends for not just her own sake, but for everyone’s.

“I know I’m not only responsible for myself, but for my group and the people around me,” says Weber. “Joining the backcountry skiing community, you have to know you’re responsible for the greater whole.”