We have all heard the constitutional concepts that serve as the foundation of American law and society. Equal Protection Under Law, Due Process, “Life, Liberty, & Property,” and courts to give them life.
Every cloud has a silver lining, they say, and that is true about these fundamental concepts. That darkness underneath seems to rule.
Equal protection on its face means that everyone is treated equally. One might assume that this means everyone, but for some reason, the U.S. Supreme Court has limited equal protection under law to certain very limited categories. Race-based inequality is prohibited and highly scrutinized, but gender-based inequality has a lower standard. Disability is not protected at all by the equal protection clause.
Congress wants disability to protected as a category, but the U.S. Supreme Court has narrowly construed that law since the beginning. That’s why Congress had to come back again in 2008 and reinforce that all disabled people are covered under this law, and courts need to treat that liberally. ADA Amendments Act of 2008.
Because the Supreme Court will not liberally apply Equal Protection, Congress must create protections through law that the Constitution won’t because of the attitude of the courts.
America has always been distinguished internationally by its advanced egalitarian principles in law and society. The idea of a “melting pot” is that everyone is welcome, and welcome means equal. Alexis de Tocqueville made special mention of equality as a fundamental feature of American democracy in his seminal 1835 work, Democracy in America.
At the same time, there have always been elitist elements that have not embraced democracy and equality together in America. The starkest example is the Dred Scott decision, where the U.S. Supreme Court refused to treat a black man as equal to a white man, and allowed slavery to continue. Dred Scott v. Sandford, 60 U.S. 393 (1857).
If the U.S. Supreme Court had been brave and honest enough in the 1850s to end slavery using legal and constitutional mechanisms like “liberty” and “Due Process” or “Equal Protection,” maybe the Civil War could have been averted. Not surprisingly, Southern zealots controlled the U.S. Supreme Court in the 1850s, making it a hostile environment to ask for fundamental rights and change.
These are not dry, dead concepts on a piece of paper in some dusty ivory tower. People fight and die over these rights.
Due Process is a code word for “fairness” in a court or administrative proceeding. But when a person is disfavored, fairness can dry up and blow away.
For instance, one would think that fairness, Due Process, would dictate that when a person makes an appeal, that person will get a merits decision from the Court. Courts exist to provide that service.
That assumption is not actually the case. At the state supreme court level, often the Court has discretion whether to take an appeal, known as “transfer.” That is one way that a merits decision can be avoided.
There are doctrines to prevent the federal courts from intervening in a state proceeding or reviewing it even when the state courts are self-interested in the outcome and violating nemo judex in causa sua (no judging your own case). These are called Rooker-Feldman and Younger doctrines, after the U.S. Supreme Court cases that established them.
What these doctrines show is that the U.S. Supreme Court wants to be the only federal review court, but it denies certiorari 99% of the time. Thus, it is only a reliable review mechanism 1% of the time.
Some courts will play games with poverty status, in forma pauperis, denying it when they don’t want the poor person to have a merits decision they would likely win. Federal courts go through an in forma pauperis “screening” exercise but that manifests as the federal judge deciding a motion to dismiss without the defendant even making the motion or appearing.
Seventh Circuit Senior Judge Richard Posner has said that pro se parties are considered to be like trash to federal judges. That would explain why such parties end up without real merits decisions, using a dozen different doctrines.
At the U.S. Court of Appeals level, some circuits like the 2nd Circuit have chosen to allow the Court Clerk to refuse to assign any judges to a 3-judge panel, at the Clerk’s discretion. Without those 3 judges, no merits decision will be done. This is odd given the Federal Rules of Appellate Procedure guarantee a right to an appeal when the reality is that the right can be thwarted.
And there is no absolute right to an en banc review of a 3-judge panel by the whole Court of Appeals. En banc review is a rare item, only happening less than 1% of the time, according to court statistics. This is weird because precedents can only be changed by a court of appeals when it acts en banc.
While Article III of the U.S. Constitution establishes that there shall be a U.S. Supreme Court, this too has been limited. While in theory, there is a U.S. Supreme Court, the ability to deny certiorari means that even when a person files a petition and sets the appeal before the Supreme Court, that Court can just say no. And all it takes to block any appeal is 6 justices saying no. It takes 4 to say yes and there are only 9.
This system does not exist in the Constitution but was created by a conservative Congress in 1926, with the bill being written by 4 U.S. Supreme Court justices. Thus, there was a separation of powers problem from the very beginning in creating the certiorari denial system.
That system can be seen as nothing more than the ability to not provide a merits decision that should instead be granted to everyone. Another example of courts not providing equal protection under law to everyone. We have a certiorari system that gives an elite 1% access to the Court with no guidance to the Court on how that discretion is to be exercised.
When justices like Clarence Thomas take huge gifts from billionaires, it is not hard to see what motivates certiorari decisions that are 100% discretionary and don’t have to be justified.
As Chief Justice Taft said in 1926 in defense of this new system, the lower courts take on the role of the highest court, with only a very few exceptions.
But that system is an invented system. Life, liberty, and property should be protected equally for everyone and there needs to be a national supreme court that provides these decisions and protections equally to everyone because everyone is equal under law in the United States.
Equal justice under law should not mean that if you live in a liberal circuit, you have more civil and constitutional rights. Every circuit should be using exactly the same rules and law. That system breaks down into circuit and state supreme court silos when the Supreme Court refuses to take cases and decide them.
Instead, the U.S. Supreme Court has been busy limiting and refusing to enforce practically every provision in the Constitution. In the 1940s, the U.S. Supreme Court said in Bell v. Hood, 327 U.S. 678 (1946), that the Constitution would be enforced where Congress has not provided any implementing legislation.
That grew into the Bivens doctrine, which aggressively applied certain parts of the Bill of Rights, even granting money damages when they are violated. Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971). These Bivens rights happen when Congress has no law implementing the Constitution.
Since that Bivens case in 1971, this doctrine has ground to halt. Even when Congress fails to provide legislation, new Bivens rights will not be given life.
The U.S. Supreme Court has become so hostile to that Constitution-mandating Bivens doctrine, it will not even create a new Bivens right when the government kills someone. Hernandez v. Mesa, 589 U.S. ___ (2020).
It is easy to see that Justice Alito in Hernandez was so concerned about separation of powers, but the certiorari system itself was created by 4 Supreme Court justices writing laws for Congress to pass. 43 Stat. 936.
The point here is that judges and justices are not committed to fundamental rights. They are not committed to access to the courts, fairness, or treating everyone equally no matter what civil rights category applies to the person.
We live in an era where courts are instruments of the elite. These fundamental traditional American concepts of equal protection, fairness, and constitutional freedoms and rights are indeed becoming dusty relics of a bygone age, paid with blood that now just looks like idealistic black stains on the page.
The only question, as Judge Posner has alluded, is whether you are more favored than your opposition. It does not matter what the law says or the Bill of Rights. It’s all about who you are and your position in the elitist hierarchy that is enforced like steel in the state and federal courts. That ghost of Dred Scott lives on because fairness and equality have died and it was the courts themselves who killed them.
It’s not hard to imagine the conversations in a court that plays favorites. The judge or judges decide who is going to win or lose and they hand off the task of writing a whitewashing decision to make it look like a principled decision when nothing like that happened. The certiorari system allows an even more sterile and extreme version of favoritism. An actual merits decision is not even required to deny certiorari.
The third branch of government is the least accountable to democratic processes. These judges are elitists at heart and rather than putting an election result on their wall, often these judges have a copy of the presidential appointment and Senate vote, since that is what put them there for life.
Judges not controlled by law, the Constitution, or precedent are judges who can be motivated by other means to obtain that golden “favor” that Judge Posner shows is the real reason for decisions. That’s dangerous.
Doug Bernacchi Author of America’s Kangaroo Courts says
I agree but not with the politics just that the system was hijacked by the powerful. Neither political party has a claim to any moral high ground and both have turned a blind eye to the abject flaws and failures of US injustice system. Reform requires new people not new politicians or democrats court packing. Real justice for all is a vapid concept by so many judges, clerks, justices, lawyers, and liberal law schools , which are mostly at fault.
Andrew U D Straw says
Let me start by saying how much I appreciate you and what you have done for me.
I agree that any person of any political party can break the ground rules. But it is traditional for there to be an opposition party that keeps a watchful eye on the more powerful party. That’s the position I am in when I fight against property takings violations and other due process messes. It’s almost always Republican judges I oppose, but Democrat judges have violated the norms of decency in front of me also, including judges appointed by Obama.
When judges of either political persuasion, left or right, take your property without paying, it’s a tragedy. Not just for the person losing it, but for everyone’s expectations that the system works. I am saying the system doesn’t work.
We have federal judges brave enough to say to the NYT thatjurisprudence is not about applying laws, but making sure the favored side wins, no matter what. Posner said that. He’s a Republican judge. An icon among Republican judges.
Curtis Hill was virulently Republican. Loretta Rush heads a Republican-only court. There is no review for me because the US Supreme Court is 6-3 Republican now and that means no certiorari to anyone without getting at least one Republican justice to agree. It takes 4.
The politics is that Republicans dominate the judicial branch in Indiana, the 7th Circuit, and SCOTUS, so my not being of that persuasion means I am automatically disfavored. But it also means I am the loyal opposition, ready to fight them. I am not incompetent and I don’t file frivolous cases, as you know. But they have to attack me and that is the favored means. Crazy liberal. The rhetoric is as old as the nation.
In the Posnerian Universe, that’s worse than being wrong. Being disfavored means inabililty to win no matter what your argument is. It means there are no actual courts, only the “Kangaroo Courts.”