"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.

Wednesday, June 28, 2017

The discretionary US Supreme Court - via Gorsuch - announced that its job (as the US Constitution, Article III requires) is not to change statutory law, but only to apply it. What a fresh idea!

The new SCOTUS judge Neil Gorsuch is lauded by the press for authoring the unanimous opinion of the U.S. Supreme Court claiming, among other things, that it is not the job of that court to change statutory law, but only to apply it.

While that is exactly what the U.S. Constitution, Article III and Article I say - Article I giving exclusive authority to legislate (create and amend federal laws) only to the U.S. Congress, Article III not giving similar authority to federal courts, including to the U.S. Supreme Court - the U.S. Supreme Court justices usually never follow what they were sworn and are paid to do.

First, the choice of cases.

You may not be aware that the "discretionary right" of the U.S. Supreme Court to take only cases they deem "worthy" for their pre-eminent review did not always exist.

It was given to the U.S. Supreme Court by the U.S. Congress only in 1925, on the request of the U.S. Supreme Court complaining that they have too many cases to review - too hard a job to do.

Instead of expanding the court to be able to handle all cases that come their way, or impeach justices who, in response to a growing caseload, asked to allow them NOT to give people an opportunity to be heard, the U.S. Congress condoned the justices claim for their right to be lazy and gave them the right for "discretionary" picking and choosing which cases they want or not want to hear on a final appeal.

And do they pick since then.

Imagine a completely discretionary job.

On the one hand, all SCOTUS judges are sworn to uphold the U.S. Constitution - which, by the way, does not include in it Supremacy Clause precedents of that same SCOTUS. 

On the other hand, by the Supreme Court Act of 1925, SCOTUS judges are at liberty not to do their job - not to take any required number of cases per year.

The 9 of them occupy a huge marble palace, are paid royal upkeep and are given a royal crowd of servants, but are not required to do a damned thing.  Literally.

All of their job is discretionary.

They can pick to hear one case per year if they want to - or not to find any one case worthy of their review in any given year at all.

They routinely toss meritorious cases, citing multiple violations of the U.S. Constitution by civil rights plaintiffs, and especially by pro se plaintiffs.

Yet, they routinely take cases of corporations - and I wonder how many of those fund their wining and dining, their and their families' trips, "scholarships", speaking engagements and careers.

So, let's look at the very "principled" decision of Justice Gorsuch.

The case the "discretionary court" has picked is of an auto debt collector.

You must agree that the non-payment of loans to people who lend money for consumers to buy cars is the most important constitutional problem in this country to tackle.

So, out of 8000 of petitions, most of which (99%) are not given any review, this one was picked, reviewed and decided, in favor of the debt collectors.

And in this case, Justice Gorsuch, getting in the high horse of the "rule of law", has stated that, once again,
  • it is not for the Court to amend statutory law enacted by the U.S. Congress, and
  • if the U.S. Congress wanted to include or exempt certain entities from the reach of a statute, it would have done it.

Great job.

But - wait a second, didn't the same U.S. Supreme Court find judicial, prosecutorial, "official", "sovereign", "qualified" and a zillion other types of "immunities" which the U.S. Congress DID NOT include into the Civil Rights Act.

Doesn't the same principle apply?

If the U.S. Congress wanted to include something into the statute, it would have?

No, for their own benefit, to give THEMSELVES, and other members of the government a free walk out of a liability under an act of Congress, the U.S. Supreme Court found that it is impossible to even thing that the U.S. Congress could have forgotten to give out such immunities, so, if it didn't give such immunities in the text of the Civil Rights Act, it means a completely different thing in the immunity context than what Gorsuch said as applying to any other Act of Congress.

So, if it is an Act of Congress dealing with debt collectors - if the U.S. Congress did not include something into the statute, it is not court's business or authority to change that act of Congress.

Yet, if the Act of Congress did not include something that the justices of the U.S. Supreme Court (or other members of the government) crave for themselves, such as being above the law and immune from the reach of the same U.S. Constitution judges are allegedly protecting - then, the rule is completely different: the U.S. Supreme Court will insert, through interpretation, that the U.S. Congress could not possibly NOT imply what it clearly did not include into the text of the statute.

There is no reason to treat with adoration or awe the "discretionary" U.S. Supreme Court and its decisions - decisions that follow the law only when, in their "discretion", the Court "chooses" to help corporation against individuals.

In the absolute majority of cases the U.S. Supreme Court either refuses to deal with enforcement of the U.S. Constitution, tossing 99% of constitutional violations coming its way, or "sets the law for the whole country", openly usurping the exclusive right of the U.S. Congress to legislate under the U.S. Constitution.

And, in June of 2017, after SCOTUS announced, in a unanimous opinion issued on June 12, 2017 (in favor of debt collectors) that it has no authority to amend an Act of Congress, it did just that - and did it after judges of the court were vulgarly paid off to rule the way they did.

How it was done, I will describe in my next blog.

Stay tuned.

No comments:

Post a Comment