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.
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.