I have been reading judicial decisions by the U.S. District Court of Appeals for the 2nd Circuit, in cases involving me as an attorney and/or a party, and civil rights cases where I was not involved in any capacity.
Most of the cases, as I wrote previously in this blog, were rejected without much explanation in "summary" decisions.
My husband and I ventured to ask for the so-called "en banc" rehearing by the entire panel of the court.
With the same result.
The usual template statement in the summary decisions of the 2nd Circuit in civil rights cases affirming decisions of the lower district courts (no matter how unconstitutional those decisions are) are because they are affirming the "thoughtful" decision of the lower court for "substantially the same" reasons.
"Substantially the same" is not the same.
By rules of federal appellate procedure, in pro se civil rights cases the appellate court receives the docket sheet (list of cases) "in lieu" (instead) of the real record.
According to the unspoken rule of the 2nd Circuit that can fit into two short letters: TL;DR (too long, did not read), it is the clerks who read those pesky civil rights appeals, and it is judges on senior status, most of them over the age of 70 and 80, who "hear" and decide those cases.
Since judges send to the clerks an unmistakeable message that civil rights appeals are to be discarded, they are discarded.
But, to discard a civil rights appeal because the court wants to clear its docket of those pesky civil rights appeals would be too arrogant for even today's utmost level of arrogance of the American judiciary.
So, a template phrase is invented that the case is affirmed on appeal "on substantially the same grounds" as the "thoughtful" decision of the district court.
First of all, where there is a phrase "substantially the same", it is not the same, there are differences, and the court is bound, as a matter of due process of law, to explain the EXACT grounds upon which the appeal is rejected.
Furthermore, ANY decision of a judge, no matter how corrupt, unlawful or unconstitutional it may be, is still THOUGHTFUL, because any judicial writing is a product of THOUGHT.
So, to say that a judicial decision is affirmed because it was THOUGHTFUL is to say that the appellate court DOES NOT CARE what the decision was at all - it will rubber stamp any decision anyway.
So much for civil rights litigation.
Yet, the judiciary does not seem to realize that revolutions are made (and the American revolution that we celebrated on the 4th of July included) where legal remedies for violations of basic human rights are not available.
No matter how THOUGHTFUL those violations are.
THE EVOLUTION OF JUDICIAL TYRANNY IN THE UNITED STATES:
"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.
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