Some two hundred years ago, Thomas Jefferson perceived the fatal flaw in our Constitution that, if unchecked, would lead to the eventual death of the Republic. He wrote, "The original error [was in] establishing a judiciary independent of the nation, and which, from the citadel of the law, can turn its guns on those they were meant to defend, and control and fashion their proceedings to its own will." Thomas Jefferson, Letter (to John Wayles Eppes), 1807. Over the past ten years, we have watched in revulsion as our portfolio of rights has been ground into nothingness by an endless array of partisan jurists, chosen more for their loyalty to Republican Party leaders than their competence or fealty to the Constitution. Monica Goodings may come and go, but the Pickerings, Robertses and Alitos are the toxic waste BushCo will leave behind.
Judicial misconduct is like a bear in the woods: while you may not see him, when you find his paw-print in the mud -- irrational decisions, in irreconcilable conflict with precedent -- you know he is out there. Professor Karl Llewellyn explains that judges often
manhandle[] ... the facts of the pending case, or of the precedent, so as to make it falsely appear that the case in hand falls under a rule which in fact it does not fit, or especially that it falls outside of a rule which would lead in the instant case to a conclusion the court cannot stomach.
Karl N. Llewellyn, The Common Law Tradition: Deciding Appeals (1960) at 133.
When our judges cook the books, the stench is unmistakable. As Llewellyn remarked, "[s]uch action leaves the particular point moderately clear: the court has wanted [the result] badly enough to lie to get it." Id. at 135. And if you need anything other than Bush v. Gore, 531 U.S. 98 (2000), to prove this point, you probably haven't been paying attention.
What you probably don't know is that modern-day judges are under no legal obligation to follow the law as established by previous courts (under the doctrine of stare decisis). If they don't like the facts of a case, they will invent new ones, and if they don't like the law, they will rewrite it. In essence, our courts only follow the law and facts if they take them exactly where they wanted to go in the first place.
How Our Servants Became Our Masters
On April 11, 1967, eight Supreme Court justices staged what history could call a judicial coup d’êtat. In brazen defiance of the clearly expressed will of Congress and every canon of judicial interpretation then known to law, they seized power from the people -- by declaring that "every person" really meant "every person except us judges." Pierson v. Ray, 386 U.S. 547 (1967). In that instant, the realm of the law became an Alice-in-Wonderland world, where words only meant what a judge needs them to mean on that day, at that time. It no longer mattered what a statute said, or what Congress intended.
In Pierson, an integrated group of civil rights marchers attempted to use a "whites only" bus terminal waiting room, and were arrested and convicted for disturbing the peace. After their conviction was overturned on appeal, the group sued the presiding judge, who dutifully applied a state statute that was later found unconstitutional. Instead of finding that the judge acted in good faith (and disposing of the case without creating new law -- they deprived the plaintiffs of a remedy anyway), the Warren Court seized the opportunity to grab almost unlimited power, rewriting the law in their image.
The ubiquitous civil rights statute, Section 1983, is as plainly written as any statute you could hope for: "Every person [who does X to Y is liable to Y in tort]." And presumptively, "every person" really means "every person." Had Congress intended to exempt judges from liability under this statute, it surely would have said so. But in a brazen act of judicial activism, the Supreme Court declared that "every person" really meant "every person but us judges."
The constitutional carnage wrought by Pierson is demonstrated in Stump v. Sparkman, 435 U.S. 349 (1978). Stump involved a request by a mother to have her "mildly retarded" 15-year-old girl sterilized, which the judge summarily approved without bothering to provide her with representation through a guardian ad litem. The girl had no idea what the mother had done to her; she was told that she was having her appendix removed. And had she been properly represented, the sterilization would never have happened, as Indiana statutory law expressly prohibited the judge from doing what he did. But the judge didn't have to care about the law because he was a judge, who could disregard the law with absolute impunity.
Several years later, the girl married; only then, did she learn that she had been sterilized without her knowledge or consent. When she sued the judge for damages, the Supreme Court -- following Pierson -- effectively declared: "We don't have to follow the law, and there's nothing you can do to us if we don't. WE'RE JUDGES!"
Judges, Committing Treason
To fully appreciate the treasonous nature of Pierson, one must understand the rules courts have used since the dawn of the Republic to interpret statutes enacted by Congress. First among them is the "plain meaning" rule -- the presumption that Congress meant what it said and said what it meant in the text of the statute. See, Connecticut Nat’l Bank v. Germain, 503 U.S. 249, 253-54 (1992) ("We have stated time and again that courts must presume that a legislatures says in a statute what it means and means in a statute what it says there" -- collecting cases spanning two centuries). Under that rule, when the terms of a statute are unambiguous, judicial inquiry is presumptively complete. See, Rubin v. United States, 449 U.S. 424, 430 (1981) (noting exception for the "rare and exceptional circumstances" where the statute is inconsistent with the purposes of the legislation). Justice Cardozo adds that courts may not "pause to consider" whether a better statute might have been written, but are compelled to "take the statute as we find it." Anderson v. Wilson, 289 U.S. 20, 27 (1933).
Furthermore, Section 1983 was a remedial statute, which is to be liberally construed to accomplish the purposes of its enactment. E.g., State Farm Fire & Casualty Co. v. Tashire, 386 U.S. 523, 533 (1967) (decided the day before Pierson!). As Justice Douglas explained in his lone dissent, it came into being in the Ku Klux Klan Act of 1871, and its remedial purpose was clear:
A condition of lawlessness existed in certain of the States, under which people were being denied their civil rights. Congress intended to provide a remedy for the wrongs being perpetrated. And its members were not unaware that certain members of the judiciary were implicated in the state of affairs which the statute was intended to rectify. It was often noted that " [i]mmunity is given to crime, and the records of the public tribunals are searched in vain for any evidence of effective redress." Cong. Globe, 42d Cong., 1st Sess., 374. Mr. Rainey of South Carolina noted that " [T]he courts are in many instances under the control of those who are wholly inimical to the impartial administration of law and equity." Id., at 394. Congressman Beatty of Ohio claimed that it was the duty of Congress to listen to the appeals of those who " by reason of popular sentiment or secret organizations or prejudiced juries or bribed judges, [cannot] obtain the rights and privileges due an American citizen . . . ." Id., at 429. The members supporting the proposed measure were apprehensive that there had been a complete breakdown in the administration of justice in certain States and that laws nondiscriminatory on their face were being applied in a discriminatory manner, that the newly won civil rights of the Negro were being ignored, and that the Constitution was being defied. It was against this background that the section was passed, and it is against this background that it should be interpreted.
The state of affairs in the South in 1867 would seem familiar to us living in 2007. They had their own Alberto Gonzales -- local district attorneys and attorneys general who routinely engaged in selective prosecution and non-prosecution. They had their very own Roberts, Scalia, Thomas, and Alito -- local judges willing to put their fingers on the scales of justice to aid the powerful at expense of the weak. But their Congress crafted a remedy, making "every person" who deprives another person of his/her civil rights while acting under color of law liable for damages in tort. There was no exception for state judges, but our Supreme Court penciled one in anyway.
If you think the word "treason" unduly strong -- recalling that it has been properly used in describing the acts of the current occupant of 1600 Pennsylvania Avenue -- bear in mind that it is the assessment of judges themselves. According to Chief Justice Marshall, a judge’s willful refusal to hear a case he has a duty to hear is "treason to the Constitution," Cohens v. Virginia, 19 U.S. 264, 404 (1821), and the treasonous acts of a tyrant may be met with lethal force (as suggested by the Oath of American Citizenship). As Roger Sherman -- able lawyer, judge, legislator, and signatory to the Constitution -- observed in the very halls of Congress,
[c]onceived it to be the privilege of every citizen, and one of his most essential rights, to bear arms, and to resist every attack upon his liberty or property, by whomsoever made. The particular states, like private citizens, have a right to be armed, and to defend, by force of arms, their rights, when invaded.
Roger Sherman, 14 Debates in the House of Representatives, ed. Linda Grand De Pauw. (Balt., Johns Hopkins Univ. Press, 1972), 92-3 (emphasis added).
Justice Sutherland described the act of writing a law under the guise of interpreting it as "a flagrant perversion of the judicial power." Heiner v. Donnan, 285 U.S. 312, 331 (1932). Justice Frankfurter adds that the judge’s only legitimate task is "to ascertain the meaning of the words used by the legislature," for to go beyond it, and rewrite a statute to his or her liking, is to "usurp a power our democracy has lodged in its elected legislature." Felix Frankfurter, "Some Reflections on the Reading of Statutes" (speech before The Association of the Bar of the City of New York), Mar. 18, 1947.
Designer Law: the "Unpublished" Decision
Judges ascend to the bench pursuant to an agreement, implicit in Article III of the Constitution, that they will only declare what 'the law' is and consistently apply it. Indeed, this understanding is traced to Shakespearean times: as famed lawyer Sir Francis Bacon wrote, "Judges ought to remember that their office is jus dicere, and not jus dare; to interpret law, and not to make law, or give law." Sir Francis Bacon, Essays (On Judicature) (1625).
The judge's fidelity to precedent is essential to the preservation of our personal liberties. 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 No. 78 (Alexander Hamilton). Lord Coke added, "[i]t is the function of a judge not to make, but to declare the law, according to the golden mete-wand of the law and not by the crooked cord of discretion." 1 E. Coke, Institutes of the Laws of England 51 (1642). As in all but the most exotic cases, the law is clearly established, the judge is expected to be little more than an administrator, playing what Professor Llewellyn called "the game of matching cases." Llewellyn, The Bramble Bush 49 (1960).
Modern judges escaped this straight-jacket by declaring that certain decisions would be "unpublished." What this meant, as a practical matter, was that they were free to ignore court decisions they didn't like. The peril this poses to our liberties is pretty obvious: You can have no idea what the law is until you are hauled into court, and can't even plan your affairs in such a way as to avoid legal liability. In a decision commanding wide attention in legal circles, the late Judge Richard Arnold (a Carter appointee) explained how inherently outrageous this practice was (quoting Justice Story's Commentaries):
The case is not alone considered as decided and settled; but the principles of the decision are held, as precedents and authority, to bind future cases of the same nature. This is the constant practice under our whole system of jurisprudence. Our ancestors brought it with them, when they first emigrated to this country; and it is, and always has been considered, as the great security of our rights, our liberties, and our property. It is on this account, that our law is justly deemed certain, and founded in permanent principles, and not dependent upon the caprice or will of judges. A more alarming doctrine could not be promulgated by any American court, than that it was at liberty to disregard all former rules and decisions, and to decide for itself, without reference to the settled course of antecedent principles.
This known course of proceeding, this settled habit of thinking, this conclusive effect of judicial adjudications, was in the full view of the framers of the constitution. It was required, and enforced in every state in the Union; and a departure from it would have been justly deemed an approach to tyranny and arbitrary power, to the exercise of mere discretion, and to the abandonment of all the just checks upon judicial authority.
Anastasoff v. United States, 223 F.3d 898, 904 (8th Cir.), vacated as moot, 223 F.3d 1054 (8th Cir. 2000) (en banc).
At the federal appellate level, cases are generally decided by a majority vote of a panel of judges who have never read the parties' briefs and typically, are as well-prepared as your average Congressman. Even in published decisions, the judges vote on the outcome and then, write a decision justifying their vote. The only time that a judge even considers an appeal not selected for publication is in a judicial conference, where judges spend more time bragging about their golf game or talking about that cute little brunette down at the strip club (that is, when they can remember where they were that night, which isn't necessarily a given) than on an individual appeal. The leading proponent of unpublished opinions, Reagan-appointed Judge Alex Kozinski of the Ninth Circuit, publicly admitted that panels in his circuit may issue 150 rulings per three-day session -- that’s less than ten minutes per decision! Alex Kozinski, Letter (to Judge Samuel A. Alito, Jr), Jan. 16, 2004, at 5. But even they are slackers compared to Judge Arnold, who confessed in a speech at Drake University that he participated in a two-hour panel conference deciding fifty appeals. "Perfunctory Justice; Overloaded Federal Judges Increasingly Are Resorting to One-Word Rulings," The Des Moines Register, March 26, 1999, at 12.
Federal appellate law is pure, unadulterated democracy: two wolves and one lamb deciding what to have for dinner. Back-room deals are the order of the day, Patricia M. Wald, The Rhetoric Of Results and the Results of Rhetoric: Judicial Writings, 62 U. Chi. L. Rev. 1371, 1374 (1995), with decisions often written to justify the result. Cf., Charles E. Hughes, The Supreme Court of the United States (New York: Columbia U. Press, 1928), p. 64 ("there is no better precaution against judicial mistakes than setting out accurately and adequately the material facts as well as the points to be decided"). As such, it appears that Judge Arnold was eventually forced to recant by his majority Republican colleagues. Thus, the problem still remains: Judges can do whatever they damn well please to you, and even if our appellate courts were honest, their work is so stunningly shoddy that even the most obvious errors are left to stand.
Under this new regime, you can lose your case because the judge said so; even if the judge took a bribe, there was nothing you could do about it. And if what veteran federal judge John Kane (yes, he is another Carter appointee) is any indication, our judges don't just take bribes -- they solicit them:
For example, a federal judge, John Kane (who gave me permission to quote his e-mail), wrote, "I've been a district judge for 29 years and think the federal judicial house has brought this legislation on itself." He sat on the 10th Circuit Judicial Council when the first complaint about a judge came up for consideration: A district judge was trying to coerce counsel into establishing a library on product liability cases in honor of the judge.
Judge Kane's e-mail is worth quoting at length. He voted for discipline. The vote was 3 to 3, "and so the Chief Judge voted against sustaining the complaint because it was the first such complaint and he thought a close vote was too slender a reed upon which to proceed. As we were leaving the meeting, one of the judges who had voted to dismiss collared me and said, 'John, think about it. The next time it could be you or me. We've got to stick together.' "
Kane added, "I've recently heard of a number of judges who ruled on cases involving companies in which they owned an interest, yet nothing was done about it. The point is that the current system is a 'kiss your sister' operation that hasn't worked and won't as long as judges are covering one another's butts. The present system is ineffectual and I think that could be demonstrated by the very sorry record."
Ronald D. Rotunda, "The Courts Need This Watchdog," Washington Post, Dec. 21, 2006 at A-29.
So here, we have our problem: Federal judges have power to write designer law, applicable to one and only one set of litigants. They can fabricate facts, disregard precedent, and effectively re-write statutes on a whim. They have declared themselves to be immune from liability in tort for even intentional violations of your civil rights. It is virtually impossible to impeach a federal judge ... and almost as difficult to persuade anyone from the Department of Injustice to initiate criminal prosecution.
Now, bear in mind that the vast majority of federal judges were appointed to the bench by Republicans. Will you sleep well tonight, safe in that knowledge?
A Legislative Solution
While everyone can agree that it is a bad idea to have our judges be accountable to the Executive or even the Legislature, there is no compelling reason why they should not be personally accountable to the people they are supposed to be faithfully serving.
The simplest way to achieve this aim would be for judges to be liable in tort for injuries inflicted as a result of their willful misconduct (with limits on personal liability to the judge, but requiring the federal government to pay the excess), and to empower litigants or their designees to pursue criminal charges to the point of indictment (at which point, the attorney general would be required by law to prosecute) where appropriate. If a judge knows that s/he could face meaningful civil and criminal punishment for wrongful actions on the bench, s/he might pause before indulging in them. This, in turn, will substantially limit the residual damage BushCo appointees can do.
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