"If the judges interpret the laws themselves, and suffer none else to interpret, they may easily make, of the laws, [a shredded] shipman's hose!" - King James I of England, around 1616.

“No class of the community ought to be allowed freer scope in the expression or publication of opinions as to the capacity, impartiality or integrity of judges than members of the bar. They have the best opportunities of observing and forming a correct judgment. They are in constant attendance on the courts. Hundreds of those who are called on to vote never enter a court-house, or if they do, it is only at intervals as jurors, witnesses or parties. To say that an attorney can only act or speak on this subject under liability to be called to account and to be deprived of his profession and livelihood by the very judge or judges whom he may consider it his duty to attack and expose, is a position too monstrous to be entertained for a moment under our present system,” Justice Sharwood in Ex Parte Steinman and Hensel, 95 Pa 220, 238-39 (1880).

“This case illustrates to me the serious consequences to the Bar itself of not affording the full protections of the First Amendment to its applicants for admission. For this record shows that [the rejected attorney candidate] has many of the qualities that are needed in the American Bar. It shows not only that [the rejected attorney candidate] has followed a high moral, ethical and patriotic course in all of the activities of his life, but also that he combines these more common virtues with the uncommon virtue of courage to stand by his principles at any cost.

It is such men as these who have most greatly honored the profession of the law. The legal profession will lose much of its nobility and its glory if it is not constantly replenished with lawyers like these. To force the Bar to become a group of thoroughly orthodox, time-serving, government-fearing individuals is to humiliate and degrade it.” In Re Anastaplo, 18 Ill. 2d 182, 163 N.E.2d 429 (1959), cert. granted, 362 U.S. 968 (1960), affirmed over strong dissent, 366 U.S. 82 (1961), Justice Black, Chief Justice Douglas and Justice Brennan, dissenting.

" I do not believe that the practice of law is a "privilege" which empowers Government to deny lawyers their constitutional rights. The mere fact that a lawyer has important responsibilities in society does not require or even permit the State to deprive him of those protections of freedom set out in the Bill of Rights for the precise purpose of insuring the independence of the individual against the Government and those acting for the Government”. Lathrop v Donohue, 367 US 820 (1961), Justice Black, dissenting.

"The legal profession must take great care not to emulate the many occupational groups that have managed to convert licensure from a sharp weapon of public defense into blunt instrument of self-enrichment". Walter Gellhorn, "The Abuse of Occupational Licensing", University of Chicago Law Review, Volume 44 Issue 1, September of 1976.

“Because the law requires that judges no matter how corrupt, who do not act in the clear absence of jurisdiction while performing a judicial act, are immune from suit, former Judge Ciavarella will escape liability for the vast majority of his conduct in this action. This is, to be sure, against the popular will, but it is the very oath which he is alleged to have so indecently, cavalierly, baselessly and willfully violated for personal gain that requires this Court to find him immune from suit”, District Judge A. Richard Caputo in H.T., et al, v. Ciavarella, Jr, et al, Case No. 3:09-cv-00286-ARC in the U.S. District Court for the Middle District of Pennsylvania, Document 336, page 18, November 20, 2009. This is about judges who were sentencing kids to juvenile detention for kickbacks.

Saturday, June 27, 2015

Constitutional debates about the "rainbow" decision

Am I happy that the U.S. Supreme Court recognized the right of Americans to enter same-sex marriages?

I cannot say I am happy, because I am in a heterosexual marriage.

I can say I am satisfied that, now that the U.S. Supreme Court has recognized that same-sex marriage is within the rights guaranteed by the Equal Protection Clause of the 14th Amendment of the U.S. Constitution, the states (most likely) will not be denying same sex couples the panoply of rights given to heterosexual couples the moment they marry.

Now the debate is raging among scholars, was the "rainbow" decision "judicial activism", was it warranted by the U.S. Constitution or did judges overstepped their boundaries in making this decision?

Here is the Equal Protection Clause of the 14th Amendment to the U.S. Constitution:

" No state shall ... deny to any person within its jurisdiction the equal protection of the laws."

When states deny to adult consenting Americans rights accorded to married heterosexual couples, which rights accrue out of the mere fact of marriage (without regard to duration of marraige, and without regard to age of couples and ability or desire to procreate), for no other reason but that, according to certain religions, same-sex cohabitation and marriage is a sin because sexual intercourse in such relationships cannot lead to procreation, that would be establishing religion by the state (in violation of the 1st Amendment of the U.S. Constitution) and denying equal protection of laws to citizens of the states, which is prohibited by the Equal Protection Clause of the 14th Amendment.

That said (and this is just my personal opinion as to the same-sex marriage issue), certain interesting constitutional issues arose in dissents of four U.S. Supreme Court judges in the "rainbow" case.

Here is the split between judges in the "rainbow case":

Here is a table of majority and dissents:

Majority – names/genders of judges
1st Dissent
2nd Dissent

3rd Dissent
4th Dissent
·        Kennedy - M
·        Breyer - M
·        Ginsburg – F
·        Kagan – F
·        Sotomayor – F

Author of dissent:
Chief Judge Roberts – M
Scalia – M
Thomas - M
Author of dissent:
Scalia - M
Thomas - M
Author of Dissent:
Thomas - M
Scalia - M
Author of dissent:
Alito - M
Scalia - M
Thomas - M

You can see from the table that all female judges on the court sided with recognizing same sex marriage as a civil right under the Equal Protection Clause of the 14th Amendment.

All four of the dissenters filed their own separate dissenting opinions, as well as joining in some, but not all opinions of other judges.

Thus, Chief Judge Roberts participated only in his own dissenting opinion.

Judges Thomas and Scalia authored one dissenting opinion each and joined in all dissenting opinions of all other judges.

Judge Alito authored one dissenting opinion and did not join dissenting opinions of other judges.

So, there is a split even in the dissent, at least as demonstrated by separate positions of Judge Roberts (not supported by Judge Alito) and of Judge Alito (not supported by Judge Roberts).

Judge Roberts says in his dissent what seems to be the right thing to say:

No, "this Court is not a legislature", it is true, that is what Article III says.

Yet, same sex couples did not ask the court to legislate, they asked them to force the state to recognize their equal rights under the state law to marry, pass inheritance to their life partner in a committed - yes, sexual - relationship, have access to the loved one as "next of kin" when the partner is ill, make decisions as the "next of kin", and to have all other rights that are conferred upon heterosexual couples at the ringing of the wedding bells.

Moreover, Judge Roberts is seemingly unconcerned about the court's continuously legislating, going beyond its boundaries and establishing restrictions upon civil rights litigation that were never authorized by the U.S. Congress, such as:

  • immunities;
  • abstentions;
  • deterrences doctrines;
  • doctrines of "comity and federalism";
  • the Rooker-Feldman doctrine, interpreted far beyond its intended statutory boundaries etc.
If the rampant legislating from the bench through "doctrines", "rules", and "tests" that interpret the Civil Rights Act and the U.S. Constitution into non-existence and that so far made civil rights litigation in the United States nearly impossible, are actually lawful activities by the U.S. Supreme Court in Chief Judge Roberts' opinion (and I did not see dissents from him on constitutionality of abstentions, immunities and other judge-created restrictions on civil rights jurisdiction of federal courts), why so ardently claim that in the case of same sex marriage judges legislated from the bench - and it is somehow not what judges of the U.S. Supreme Court, including its Chief Judge Roberts, do every day?

When I am talking about the death of civil rights litigation, I mean not single cases supported by public opinion and multiple amicus curiae briefs, but to all civil rights litigants, especially those who are not attractive, those who are poor, inarticulate, have criminal history or history of criticizing the government.

The law should not be a public opinion poll.  In fact, judicial independence requires judges to disregard public opinion polls and to disregard how many states recognize same sex marriage.  It is the principle of inequality and not statistics of the state allowing same sex marriage that were supposed to control the court's decision, and on that issue I agree with the dissenters.  

Of course, I need time to analyze 103 pages of the small-font single-spaced "rainbow" decision.

I will publish more analysis of the "rainbow" dissents, realistically speaking, after the July 4th weekend.

Stay tuned.

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