The End of the Untouchables Era: The Coming End of Institutionalized Federal and State Judicial Abuse of Office [UPDATED]
Last Thursday (Jun. 27) I posted a piece here titled “Poetic Justice for Justice Alito. Maybe.”, that discussed the concerted and deeply successful effort begun in the mid-1980s by the Reagan-era appointees to the federal appellate bench and continuing unremittingly since then, to invite virulent abuse of litigants and lawyers by judges—the more overt and ugly, the more the peer applause and emulation. The occasion for my post was an article about Samuel Alito, by Mark Joseph Stern on Slate, which I linked to.
My post said Alito’s conduct was part and parcel of a defining characteristic and goal of the rightwing conservative legal movement of the last four decades—goal so thoroughly successful that it became, and remains, the norm among federal judges, irrespective of political affiliation. Clinton appointees (including one who, twice, came precious-close to nomination to the Supreme Court by Obama) enthusiastically jumped on that bandwagon.
But there are two key facts that I decided not to mention in that post, and to instead leave for a later post: One is that state-court judges have, en masse, followed the lead of these federal judges. The other is that that lead consists not only of now-routine denigration and defamation of litigants and counsel but also of jaw-droppingly in-your-face disregard of clear federal and state substantive and procedural law (including unequivocal statutory law). A triumph of this juggernaut is that, regarding no-name litigants and no-name counsel, the more flagrant the deviation from unequivocal law, the cuter the judge feels. Abuse of office among judges—federal and (these days even more so) state judges—is deeply institutionalized now.
I’m posting this now (although I’m not much in the mood today) because of run75441’s post below from yesterday and because of a comment that reader Denis Drew posted to my Jun. 27 Alito piece. He wrote:
Get judges down to earth:
Just stand outside the courthouse — every courthouse — informing people: “If you don’t have to salute the flag, you should not have to rise when the judge walks in. Nobody will rise once they think of it. Game over.I refused to remove my hat in an Illinois courtroom (the judge was not yet present — was a bully). I gave the court officer my little spiel and offered to explain to the judge when he came in (he didn’t ask).
I should have added: “If you think this is church, tell the ladies to put hats on (can they tell the ladies to take hats off?).
Gives me another pesky idea. Have “Freedom Hat Day”: hand out hats outside courthouses for the men to assert their First Amendment rights.
I call this “broken windows theory for cops and judges”: full application of First Amendment discipline — remind them they are no bigger than anybody else. Make them repair their small First Amendment misbehavior and you repair the lawless atmosphere that encourages more serious offenses.
I responded today in the Comments thread:
Exactly, Denis. In writing this post, I considered saying also that state-court judges have, en masse, followed the lead of these federal judges, but I decided to leave that for a later post. The specifics are stunning and appalling. The very essence of the American judicial system has changed dramatically in the last three decades.
This crowd of federal judges had for nearly three decades been regarded as untouchable. But their unfettered, unquestioned, and under-the-public’s-radar-screen, at-will legal, ethical and moral freelancing may soon come with an actual price. It was, and remains, great fun. But times, I have reason to expect, are changing. The judicial honorarium may soon cease to serve as license for the routine, joyful abuse of that little-scrutinized but profoundly powerful public office. These folks may have to take up gardening or fishing instead as a hobby.
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UPDATE: In the Comments thread to this post, regular AB commenter and occassional AB contributor Dale Coberly posted a link to this breathtaking article on Alternet. In response to Dale’s comment, I wrote:
Yes, this is a classic instance of something I’ve written about on AB several times now, including in one of my posts here last week: The Supreme Court’s bizarre several-decade juggernaut by which, in the name of states’ sovereignty, they foreclose access to federal court to enforce federal constitutional rights, however brazenly—and I do mean brazenly—denied by state-court judges in criminal and civil cases (e.g., family-law; adult-guardianship/conservatorship; various types of contract cases, including ones that harm small businesses such as franchisees and business-loan customers).
This 18-year-old should be able to file what’s known as a declaratory-judgment lawsuit in federal court asking for, and receiving, a declaratory judgment—a declaration of law pertinent to the facts—holding that this young man’s statements are protected under the First Amendment. Even though he’s not a corporation. In the case of a criminal defendant, as this 18-year-old is, the issue is complicated by an outrageous federal “jurisdictional” statute enacted in 1996 and signed by Clinton just before his reelection bid to fend off soft-on-crime accusations, that in a juggernaut led by Anthony Kennedy (states’ sovereign dignity! By which he means state-COURTS’ sovereign dignity) is interpreted in ways that are clearly violative of the Fourteenth Amendment and the original Constitution’s writ of habeas-corpus clause. To the extent that the statute actually DOES bar a “collateral” declaratory judgment claim in federal court, it does violate those provisions of the Constitution.
That 1996 statute is, I think, finally— finally—very ripe politically for re-examination by a congressional coalition of progressives and Republican libertarians such as Rand Paul. I’d love to see this case get widespread attention; I certainly was unaware of it until now. Maybe Justice Kennedy, if he learns of it, will give a moment’s thought to the dignity of this individual and whether under the ACTUAL Constitution, state court’s sovereign dignity really trumps individual dignity.
The Alternet article doesn’t say that his arrest was by local police and that he was charged in state, rather than federal, court, but that appears to be the case, and I’m assuming that it is.
Beverly
glad you noticed. but don’t count on it. this has been going on for a long time.
from the news today:
/www.alternet.org/news-amp-politics/teen-jailed-terrorist-threat-after-making-sarcastic-comments-facebook?akid=10642.110491.0SiV3V&rd=1&src=newsletter862731&t=13
see if this works any better
http://act.alternet.org/go/35179?t=13&akid=10642.110491.0SiV3V
Yes, this is a classic instance of something I’ve written about on AB several times now, including in one of my posts here last week: The Supreme Court’s bizarre several-decade juggernaut by which, in the name of states’ sovereignty, they foreclose access to federal court to enforce federal constitutional rights, however brazenly—and I do mean brazenly—denied by state-court judges in criminal and civil (e.g., family law; adult-guardianship/conservatorship) cases.
This 18-year-old should be able to file what’s known as a declaratory-judgment lawsuit in federal court asking for, and receiving, a declaratory judgment—a declaration of law pertinent to the facts—holding that this young man’s statements are protected under the First Amendment. Even though he’s not a corporation. In the case of a criminal defendant, as this 18-year-old is, the issue is complicated by an outrageous federal “jurisdictional” statute enacted in 1996 and signed by Clinton just before his reelection bid to fend off soft-on-crime accusations, that in a juggernaut led by Anthony Kennedy (states’ sovereign dignity! By which he means state-COURTS’ sovereign dignity) is interpreted in ways that are clearly violative of the Fourteenth Amendment and the original Constitution’s writ of habeas-corpus clause. To the extent that the statute actually DOES bar a “collateral” declaratory judgment claim in federal court, it does violate those provisions of the Constitution.
That 1996 statute is, I think, finally very ripe politically for reexamination by a congressional coalition of progressives and Republican libertarians such as Rand Paul. I’d love to see this case get widespread attention. I certainly was unaware of it until now. Maybe Justice Kennedy, if he learns of it, will give a moment’s thought to the dignity of this individual and whether under the ACTUAL Constitution, state court’s sovereign dignity really trumps individual dignity.
(And, as run75441 can attest, Dale, this is not merely a recent concern of mine. Not even remotely.)
Beverly
didn’t mean to imply it was only recently your concern. it’s been mine for about fifty five years. you and i were spoiled growing up in, or right after, the warren court tried to insist that mere human beings had rights too.
in general that has not been the case.
judge Judy anyone? I mean, is there a more perfect example in modern times of the desicration of society. I’m no conformist by any means, but god, Judge Judy?
And they find people every day to go on shows like that.
Remember when Rush had a TV show specifically for denegrating those invited on?
Bev, I have to agree with Coberly that this is not new. However, it is not uniform and it can vary in its causes. For example, when I was a young punk trial lawyer, I used to observe the regional biases in the state trial courts. I know you are familiar with the Illinois state courts so you may not be surprised by an anecdote.
My firm was based in Chicago and I found myself at a motion call in Kane County (Geneva) one morning. The presiding judge repeatedly inquired as to where the moving attorney “was from” and on hearing, “Chicago”, denied the motion out of hand without argument. When it was my turn in the barrel, I told him, “Wilmette, your honor”, and he smiled, bade me good morning and after a brief explanation, granted my motion. Now you know that Wilmette is in Cook County and my office was in Chicago but apparently the judge’s geographical knowledge was limited.
This sort of thing was rather common in the “non city” counties and I occasionally observed Chicago judges returning the favor.
As to the federal courts, “federalitis” is a long recognized disease.
Having said all that, I have to add that in my experience it isn’t the norm. Given the politics ridden judicial selection process (state and federal), it is remarkable that the majority of the judges I have encountered have been courteous and acceptably competent. Many of my peers would confirm that experience.
I doubt anyone can solve the problem of judges being human, with all the quirks and foibles that entails.
JackD
I wouldn’t want you to think I never saw an honest judge. But I have seen a lot of cases like the one i cited where evil is done without the courts finding a way to prevent, or end it. And since Rhenquist I have been aware that some judges do not consider “justice” any part of their mandate.
A part of this appears to be simple stupidity. And while I am willing in principle to admit that not everyone sees “justice” the same way, I would have to turn myself inside out to interpret much of what i see done in the name of the law as anything but evil.
Coberly,
No quarrel from me. I was just trying to point out that human institutions are human. I know you know that but I thought it was possible somebody else (hello, Bev) might not be willing to acknowledge that reality. Like they say, there oughta be a law or everybody talks about the weather but nobody does anything about it. I don’t say we shouldn’t do what we can. I just say we shouldn’t expect to stop the tide.
JackD
exactly.
Jack
I don’t want to leave it there. We sit here sounding wise to ourselves while some kid sits in jail because the prosecutor and the judges don’t have common sense or common decency.
I can’t do anything about it. No one believes in religion anymore, but sometimes it causeth me to tremble… “as you did to the least of these…”
did he mean Us?
Well, yes, I think he means us but I suspect he understands our limitations as well. Sometimes an opportunity to help presents itself. Bev and I are waiting for a decision on a cert petition to the Supreme Court that fits the situation you mention. However, not all young convicts get the attention this one did and the system has a great deal to do with that.
JackD
I have to assume that you and Bev have special expertise that makes it more likely you can do something useful than I can.
But from the point of view of those in jail, it is taking too long.
The “system” is good enough that we have all had a chance to give these situations the attention they should have. I guess I know what my excuses are,
I did watch a trial one time in which the defendant was clearly innocent, having been beaten up by a cop who then charged him was assaulting an officer. The prosecurtors were not interested in anything but winning their case. The judge finally got tired of listening to their stretches of logic and found the defendant innocent. I hate to think where that defendant would be without that honest judge.
I also hate to think what it means that prosecutors have no higher morality than “winning.”
Coberly,
No special expertise other than litigation and trial experience and the fact that a friend’s son was involved. Your point about too long is well taken. This young man has been in prison for many years and his case has wound laboriously through state appellate courts, a federal district court, a court of appeals and now is pending a cert application to the Supreme Court of the United States. If he is ultimately successful, he will have lost years of his life unfairly and if he loses will also have lost years of his life unfairly (from our totally objective perspective). He has also been assisted by a well known legal scholar which may assist him in getting the court’s attention. Consider the time and work involved, whatever the outcome!
Yes, a lot of this could be avoided by more thoughtful and even handed prosecutors but they, like judges, are subject to human frailties.
The damage done to the criminal justice system and many individuals by the war on drugs (not at issue in the case we worked on) is mind boggling.
As a practical matter, pro bono efforts can help but cannot begin to really address the overall problem.
Gideon v. Wainwright articulated an important principle but that principle hasn’t really been put into practice. If I had a solution, I’d be happy to offer it but I don’t.
well, the solution would be for the people to demand an end to injustice under the law.
but as you point out, the people are subject to human frailties.
This exchange between Jack and Dale really highlights my intended key point: that the Supreme Court has aggressively, unrelentingly, and downright virulently removed federal constitutional restraints and requirements from state-court actions in criminal and civil cases by eliminating the possibility of challenging them under federal constitutional law in any federal court—including the Supreme Court, which almost never grants cert. petitions on “direct appeal” from state appellate/supreme courts unless the petition is filed by a state or local government or government official (e.g., of course, the prison warden in a habeas case), and which about 10 years ago in a case called Andrade v. Lockyear, and then even more so two years ago in a case called Harrington v. Richter in an opinion that was issued spontaneously on the basis solely of a cert. petition, without briefing and oral argument, (very) effectively eliminated access to federal court in federal habeas challenges to state-court criminal convictions. And which through a series of bizarre Court-created “doctrines,” eliminated access to federal court to challenge state-court actions in civil cases, including ones that affect even the most basic human rights—cases of the type in which, in several states, state-court abuses are open, flagrant, routine, and in-your-face, and, in one state I have in mind (not Illinois or Mich.), they repeatedly, over a period of about two decades, have baldly ignored their own state legislature’s repeated attempts to end the abuses; the courts (probate and family-law, for example) simply ignore new legislation that explicitly addresses the jaw-dropping abuses.
Nothing—nothing—ends this type of thing, because the U.S. Supreme Court and the lower federal-court “federalist” judges have made collateral federal-court access impossible. All in the name of what they call states’ sovereign dignity, but which seems to apply as a concept only to state courts and to changes in state voting laws and legislative districting. (The Texas legislature’s sovereign dignity didn’t much come into play in the recent Fisher v. U. Texas affirmative action case, for example.)
The bottom line is that their states’-sovereign-dignity juggernaut deliberately removes federal constitutional checks on state courts; that’s the very purpose of the juggernaut. The fact that judges have human frailties is exactly why the privileging of state-court sovereign dignity over individuals’ dignity (including, routinely and bizarrely in probate courts in several states, even the most basic procedural and substantive human rights of the elderly). It’s an issue that maybe Congress will soon address, regarding both criminal and civil cases. Although at least five of our current Supreme Court justices think it’s still the 1980s or 1990s, it isn’t, and younger libertarian conservatives may well join progressives on this.
Congress has contributed as well with limitations on habeas jurisdiction for example. Another example (to go along with court appointments) of the fact that elections have consequences.
sometimes it turns out right.
http://www.alternet.org/news-amp-politics/activist-prosecuted-drawing-anti-bank-america-slogans-gets-free?akid=10646.110491.HdCda5&rd=1&src=newsletter863641&t=13
but note that the prosecutor was calling for a 13 year sentence for writing… with chalk… on a Bank of America building. the judge did nothing to stop this. fortunately the jury did stop it.
but stay tuned, courts are pretty good at keeping juries from knowing about things that hurt the prosecutor’s case.
Yes, Congress has played a big role in the habeas debacle, as did Bill Clinton, who signed off on that statute in 1996 in order to avoid a soft-on-crime charge during his reelection campaign. That said, neither Congress nor Clinton intended or expected the manner in which the Supreme Court has interpreted the statute, which effectively removes access to any federal-court habeas review and denied state-court convicted defendants any way to “petition the government” to declare something unconstitutional–a right that federal criminal defendants do still have. As interpreted by the Court, the statute violates the Constitution’s habeas corpus clause, the Fifth Amendment’s due process clause and its equal-protection component, and the First Amendment’s “petition” clause.
THAT is exactly the kind of thing that Dem politicians should highlight, Dale. And, guess what? I think this is now dawning on some of them–the younger ones and the longtime progressive ones, anyway, even if not the triangulators. The triangulators are an endangered species. They won’t survive much longer. Nor will the Republicans of the it’s-forever-the-1980s variety.
Beverly
I don’t see the people demanding it. Of course, if the people did demand it you wouldn’t read about it in the papers, and they would be arrested as terrorists.
I hope you are right and I am wrong.