the shockingly decrepit state of our courts is a lot more important to the average Kossack (even those of us with FBI files), as it is more likely to hit you where you live. Moreover, as John Dean observed in Broken Government, our federal judiciary has suffered the greatest and most lasting damage from the neo-conservatives' onslaught. The judiciary should be our highest priority in our governmental triage, and will require the most extensive reconstruction.
A quick diary search reveals that a staggering 319 diaries mentioned the right of habeas corpus, and the mortal threat to our liberties posed by its repeal. But what most people don't realize is that it is already gone, and Republican propagandists are working tirelessly to ensure that it never comes back. As I write this today, you don't have a single right ... you only have liberties, which can be taken away from you at any time by the "Men in Black."
Many of us grew up trusting the judiciary to be the most reliable vehicle for social change. From Brown v. Board to Engel v. Vitale to Roe v. Wade, our judiciary transformed the nation. But this "revolution" came at an enormous price, as it sowed the seeds of its own demise. More to the point, it fostered a backlash seriously degrading our standing in the world and our personal portfolios of rights. For you see, "judicial activism" is a double-edged sword.
Civics 101: What Is a "Right?"
A "right" is a freedom to act which is inherently yours, and cannot be taken away from you without your consent. But more importantly, every right necessarily entitles you to a legal remedy whenever it is improperly infringed. As the English High Court observed long before we became a country:
If a plaintiff has a right, he must of necessity have a means to vindicate and maintain it, and a remedy if he is injured in the exercise or enjoyment of it; and indeed, it is a vain thing to imagine a right without a remedy, for want of right and want of remedy are reciprocal.
Ashby v. White, [1703] 92 Eng.Rep. 126, 136.
For the most part, American courts have recognized this principle throughout history, reasoning that a clear and undeniable right without a remedy would be "a monstrous absurdity in a well organized government." Franklin v. Gwinnett County Public Schools, 503 U.S. 60, 67 (1990) (quoting Kendall v. United States, 37 U.S. 524, 623 (1838)). Further, where there was an admitted wrong, the courts would "look far to supply an adequate remedy." DeLima v. Bidwell, 182 U.S. 1, 176-77 (1901). The classic example of this principle at work was in Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971), wherein it was decided that a person whose Fourth Amendment right to be free from unreasonable searches was violated by federal agents could sue those agents for monetary damages. And if this were the true state of the law, our rights would be entirely secure.
Welcome to the Republican Revolution.
The Republican Solution: Slam the Court Doors Shut!
As rights and remedies are inseparable, if you can be deprived of a remedy for an invasion of your rights, you can be deprived of your rights. The classic example of this is the nefarious Dred Scott (v. Sandford, 60 U.S. 393 (1856)) decision, wherein the Court effectively ruled that the Negro slave Scott was property, and the Fifth Amendment prohibited Congress from passing any law depriving his owner of his property interest without due process of law. At essence, the difference between people and property is that people have enforceable rights; take away their rights, and people become property of the State.
This is, in effect, what our courts have been doing, as exemplified by the Sixth Circuit decision in ACLU v. National Security Agency, No. 06-2095 (6th Cir. 2007). As you might have expected, the decision went straight along party lines, with Republican nominees Alice Batchelder (Bush #41) and Julia Smith Gibbons (Bush #43) quashing the suit and thereby, creating a bizarre Catch-22:
You can't sue unless you can prove the program targeted you, but the list of targeted people is top secret. As such, you can only have standing to sue if the government releases the list and you happen to be on it. Therefore, the federal government can do anything it wants to do to invade your Fourth Amendment right to privacy as long as it doesn't tell you that it did it -- and it doesn't have to.
Now, an attorney can't even speak to a client in confidence, free from the reasonable apprehension that there is nearly a 100% chance that the NSA is listening in on the conversation.
Still, the most commonly-used weapon in the Republican war on your liberties is the judge's unspoken right of personal privilege. Most people don't know this, but a judge can disregard the law whenever s/he damn well feels like and for the most part, his/her colleagues will look the other way. In essence, when a panel of judges wants to ignore its own supposedly "binding" precedent, it generally issues a so-called "unpublished" opinion -- a term of art, meaning that the decision has no precedential value. Thus, the rule of law in the decision the court ignored is still the official law of the Circuit, except when it doesn't want to follow the official law of the Circuit -- as was the case in the case being disposed of by the unpublished opinion. Indeed, our courts have become so brazen that they will publish these irregular decisions, knowing full well that they couldn't possibly be reconciled with the law that came before.
However, the most lethal weapon in their arsenal is the one often talked about here: official immunity. Under this monstrous doctrine, federal judges can do whatever they damn well please on the bench, thereby eviscerating the Bill of Rights. For a learned judicial explanation as to why this is the case, we have to travel across our northern border, where the judges are still more-or-less honest. As Canada recently enacted its own bill of rights (the Canadian Charter of Rights and Freedoms), the Supreme Court of Canada had reason to address the doctrine of absolute immunity; understandably, they found it irreconcilable with the very concept of rights under law:
An absolute immunity has the effect of negating a private right of action and in some cases may bar a remedy under the Canadian Charter of Rights and Freedoms. As such, the existence of absolute immunity is a threat to the individual rights of citizens who have been wrongly and maliciously prosecuted. While the policy considerations in favour of absolute immunity have some merit, these considerations must give way to the right of a private citizen to seek a remedy when the prosecutor acts maliciously in fraud of his duties with the result that he causes damage to the victim.
Nelles v. Ontario, [1989] 2 S.C.R. 170.
Meet the Propagandist-in-Chief
For many, retired Supreme Court Justice Sandra Day O'Connor needs no introduction. Few have worked as tirelessly to destroy our country and rule of law; her treasonous participation in the 2000 Republican putsch resulted in her becoming the de facto Supreme Court. But after she walked away from the 25-year-long shotgun marriage arranged by Ronnie's raygun, many of us assumed that the Bad, Bad, Bad, Bad Cowgirl would ride off into the sunset, doing no more harm.
And we were dead wrong.
These days, O'Connor is riding the rubber-chicken circuit, touting the virtues of judicial independence. But while there are many benefits to judicial independence in the abstract, her vision of it is radically different from any you and I might be willing to countenance. In her memoir, she observes:
The importance of the judicial branch to citizens in every country, and the crucial need for an independent judiciary free from political or private pressure, was eloquently expressed by Chief Justice John Marshall long ago: "The Judicial Department comes home in its effects to every man's fireside: It passes on his property, his reputation, his life, his all. Is it not, to the last degree important, that [the judge] should be rendered perfectly independent, with nothing to influence or control him but God and his con- science?"
Sandra Day O'Connor, The Majesty of the Law: Reflections of a Supreme Court Justice (New York: Random House, 2003) at 248.
The majesty of her flaw should be self-evident. Most of us want judges to be constrained not only by "God and his conscience," but by the rule of law -- and our Founding Fathers emphatically agreed. By way of example, Alexander Hamilton explained that to "avoid an arbitrary discretion in the courts, it is indispensable that [judges] should be bound by strict rules and precedents, which serve to define and point out their duty in every particular case before them." The Federalist # 78 Sir William Blackstone, whose Commentaries served as the Colonial lawyer's legal Bible, noted that the judge’s duty to follow precedent was derived from the nature of the judicial power itself: a judge is "sworn to determine, not according to his own judgments, but according to the known laws." 1 Blackstone, Commentaries on the Laws of England *69 (1765).
Absolute judicial immunity is a doctrine created by judges for judges, predicated on a sophistry even Lewis Carroll would find utterly impenetrable. Professor Abimbola Olowofoyeku of London’s Brunel University distills it to essentials:
You have been injured by the misconduct of a judge. We have to deny you redress. This is necessary because we have to protect your interests by protecting the judges, so that they in turn can protect your interests without fear of apprehension.
Abimbola A. Olowofoyeku, Suing Judges: A Study of Judicial Immunity at 197.
Why This Matters To the Progressive Community
Judges are an awful lot like cockroaches: Once they get into the house, they are almost impossible to eradicate. If our country is to be taken back from the neo-conservative cabal, we must implement ways to prevent judges like Julia Smith Gibbons from doing their leaders' bidding. And it is arguably the most pressing action item there is, as a well-entrenched and powerful judiciary can frustrate reform for twenty years.
___________________________________________
(This diary is part of a larger series, establishing the need for and proposing bold new mechanisms for holding federal judges civilly, criminally, and administratively accountable for their actions on the bench. Read the others in the series: Clarence Thomas: His FATHER'S Son!, Help Stop Nuclear Winter in the Judiciary, and I'm gonna write to the Bu$h-D-o-J... (the title is snarky, but the topic is serious).)