“First, kill all the lawyers.” William Shakespeare’s Henry VI, Part 2, Act IV, Scene 2. But it has never been the lawyers causing all the trouble. Instead, it is courts that promise the world and yield so little justice. It is courts that destroy democracy and deny civil rights in favor of elitism and the powerful.
Take, for instance, the U.S. Supreme Court. The Constitution dictates that there shall be a Supreme Court in Article III. This does not mean there will be a Supreme Court building with lavish furniture or even that there be justices and judicial clerks. Article III does not guarantee or dictate that there will be any justices appointed. The president can refuse to appoint them.
What does it mean for the U.S. Supreme Court to exist? It must have a substantive meaning, not just the trappings of a court. It means that those who bring controversies and disagreements will receive a fair and honest merits-based decision.
In 1925, as I have said before, several justices decided that they would write legislation to allow a certain number of the justices to deny “certiorari” without any merits decision. That legislation was a clear violation of separation of powers. Justices should not be writing legislation. The Supreme Court would not allow Congress to write its opinions. Now, the Supreme Court relies so heavily on this power to exclude, virtually all petitions are denied. 43 Stat. 936.
In effect, the U.S. Supreme Court is closed for over 99% of the people who appeal without an attorney and in forma pauperis (as a poor person) (cf. Kevin H. Smith, Certiorari and the Supreme Court Agenda: An Empirical Analysis, 54 Okla. L. Rev. 727, 729 (2001)).
Article III of the U.S. Constitution does not state that the Supreme Court has discretion over when it will decide cases or that the Court can deny people a decision based on the merits for any or no reason.
My position is that the U.S. Supreme Court violates the First Amendment right to petition, the Fifth Amendment right to fairness and due process, and the Article III right to the Supreme Court being open every time an appeal is denied. A court that is closed 99% of the time to poor pro se filers (those not using an attorney) is not serving the United States but instead has concentrated an unconstitutional exclusion power in the hands of 6 justices. That is all it takes to deny certiorari. I would rather have a bad merits decision than no decision at all because one can take the bad decision and go back to Congress for relief. That’s what happened with the Camp LeJeune denials. Courts said no, then Congress said yes.
After being denied justice so many times and lower courts mimicking the U.S. Supreme Court by closing themselves with various dishonest theories such as falsely calling cases frivolous, I say to Hell with the judges. Why not abolish Article III and all the judges and courts that have refused to give the justice required of them? Why not abolish all the state judicial branches as well? If the balance leans toward injustice, even if 49% of the time there is justice, it is not enough to justify the existence of such institutions. That’s because 51% injustice makes the whole system untenable. 51% injustice means the system is unjust.
Judge Posner was at least honest about it to NYT reporter Adam Liptak on 9/11/2017. Posner said he did not pay attention to laws, rules, constitutional provisions, or even U.S. Supreme Court precedents. He decided how cases would turn out and then made excuses to reach that result. This is opposite of Rule of Law and is known as Rule by Law, a tactic of non-democratic societies like China.
But that is in fact how all American judges act. They pick winners and losers and make excuses to justify their poor decisions and elitist choices. Those choices sound like law, but they are the manipulative words of political tyrants who are beyond the control of the public. Li, Jiefen, Legal Reform Versus the Power of the Party and State in the People’s Republic of China: Rule of Law or Rule by Law?, Lewiston, NY: Edward Mellen Press, Ltd., 2008. Judges and justices want you to feel afraid of them so you will not rebel against an unjust government branch.
This article is in Democracy Chronicles and everyone should be clear that the judicial branch of every country is the least democratic of all government institutions. They are usually not chosen by the people over whom they rule. Historically, judges were the monarch’s chosen officers and were decidedly pro-government and in favor of the powerful over the weak. Judges have been instruments of oppression, not liberation.
Ironically, some have argued that rights are safer when in the hands of judges. This is a bald-faced lie used to justify an elite class with very little in common with the average person. Judges can destroy rights without any democratic means to protect them and reverse the outcome. Judges are blue bloods and necessarily most are hostile to the freedoms and protections of a constitution. They are charged with protecting rights and the rule of law and then those judges turn around and do the exact opposite. That’s why Posner said he ignores the Constitution. Most judges do.
Law Professor Martin Shapiro has gone a step farther, saying that all judges are liars.
“Courts and judges always lie. Lying is the nature of the judicial activity. One must get over the moral angst about that and quarrel instead about what law judges make, when, and how fast. Worrying about whether judges ought or ought not to lie is foolhardy. Judges necessarily lie because that is the nature of the activity they engage in.” Shapiro, Martin. Judges as Liars. 17 Harv. J. L. & Pub. Pol’y 155-156. 1994.
I agree with this professor. It was a delusion by the Founders to think that an elitist minority would act to defend individual rights and democratic values. Courts are the opposite of democracy. Juries can shift that power, but judges have power over juries.
Americans voted numerically to elect a Democrat in 1992, 1996, 2000, 2008, 2012, 2016, and 2020. The only outright victory for a Republican was in 2004.
That is a 7-1 advantage for Democrats.
But the U.S. Supreme Court is 67% Republican. There should only be at most 2 Republicans on the Supreme Court given the votes of the American people over the past 30 years.
Indiana sometimes votes for a Democrat, like Obama in 2008. However, the Indiana Supreme Court is 100% Republican and stomps the hell out of anyone who disagrees with its discrimination.
My hundreds of pleadings and the rotten answers from judges have shown me that no liberal can trust any judge. Judges are not there to provide you with rights or protect your rights. Judges are elitists, always far to the right of the public and they drag their feet to stop any progressive change.
First, abolish all the courts. They are not doing the fantasy job we expect of them, so what difference does it make? Likely, not having false, poor judgements floating around will yield justice over 50% of the time anyway. And if the U.S. Supreme Court nearly always denies certiorari, why not round up to 100%? Why not get rid of the state and federal courts, all of them?