I mentioned earlier how the federal courts discriminate using the word frivolous. The U.S. Supreme Court is no stranger to doing this against civil rights attorneys. Frivolous is a fancy legal term that means discrimination and one merely look at how courts use it to see that this is true.
From the Founding in 1789 to 1925, all Americans had the right to bring their disputes to the U.S. Supreme Court and there was no process for rejecting nearly 100% of the appellants.
In 1925, this changed. Former President Taft, a staunch Republican, had been elevated to be Chief Justice of the U.S. Supreme Court. He and other justices supported changes to the Court’s ability to reject appeals. The Judiciary Act of 1925 abolished the constitutional right to appeal. Justice Harlan in 1962 remarked that there used to be a right of citizens to appeal to the Court, but now there is not.
While this 1925 “Judges Bill” was written by justices of the Supreme Court (making it very elite indeed), it is not the fault of the Supreme Court that it became law. The fault lies with Congress, a very Republican Congress that passed the law, and a Republican president, Calvin Coolidge, who signed the law.
I cannot imagine a more radical piece of legislation than one that removes a constitutional right to access the highest court with an appeal using mere legislation to do the dirty deed. Changes to the Constitution are supposed to happen with an amendment to the Constitution under Article V.
It is well known that there was a right to appeal prior to 1925, but the elitist William Taft, who appears to have held most offices of the federal government at one time or another, was not a democrat, but an elitist. Elitists want only a tiny number of chosen individuals to even have access to the courts. There are many ways to restrict access and using the word frivolous is one of them. Perhaps this is why the NAACP was accused of a frivolous argument (attempting to address housing discrimination) just one year later in 1926.
It is astonishing how hostile the U.S. Supreme Court was to the average citizen simply exercising a right that James Madison supported along with all the other Founders who gave us that system. This was part of a hostility to civil rights, even constitutional rights, which were then discretionary rights. Elitists always like your rights to be discretionary.
People with disabilities need access to the U.S. Supreme Court. I have attempted to protect my own rights in my law license and other ADA rights with zero success after at least 12 attempts. If a lawyer with disabilities cannot even get the attention of the Supreme Court when his 5 law licenses are stripped with discrimination, attacking his ADA cases, what can a non-lawyer expect?
I am suing. The Judiciary Act of 1925 appears to have never been challenged for 5th Amendment Due Process and now it will be, if the courts allow me. Straw v. United States, 1:18-cv-00299 (D.C. Dist.)
You can imagine how little faith I have in any federal court to give a true and correct analysis under the 5th Amendment Due Process Clause of this law that strips a constitutional right to appeal.
If I am protected in this right and the 1925 law found unconstitutional, this means instead of deciding about 80 cases per year, the Supreme Court will decide over 7,000 cases per year. The floodgates to justice will have opened.
Some may complain that the Court would be overwhelmed, but Congress has many ways to increase the power of the Court to make decisions. It can increase the number of justices as it has in the past. It can direct the Court to use panels for each circuit, randomly assigned for each case. It can provide an automatic appeal to the full court en banc. It could direct the Court to do all business electronically and allow pro se litigants to participate that way along with lawyers. It could provide PACER for free, helping cases proceed in an orderly fashion. (www.pacer.gov) It could provide a much larger budget for staff and legal clerks for the justices. In short, Congress holds the purse strings and there is nothing preventing Congress from supporting more justice rather than relying on 1925 elitism and the stripping of a critical constitutional right to appeal.
Instead of waiting with bated breath to see if one is chosen in an elite process, one should be waiting for justice instead. Not being chosen (granted certiorari) does not even represent any opinion on the merits.
Those who appeal in forma pauperis, as most disabled people will, have about a 1 in 1,000 chance of being chosen. This is such a low chance that it is not even worth the effort to create a petition. This is the final resting place of ADA claims and the promise of equality and removal of discrimination dies with each rejected petition for certiorari. This includes using the ADA to force states to accommodate disabled candidates.
On the other hand, there is an elite corps of law firms with links to industry and other favored groups and these boutique law firms have a much higher chance of getting selected, partly because the lawyers are mostly former U.S. Supreme Court clerks for the justices. Such lawyers financially benefit from only having their cases chosen for certiorari and decided on the merits.
This is the opposite of democracy. How can a disabled person, even a lawyer, who is poor ask for election accommodations when the chance of getting a wrong circuit court decision overturned is 1 in 1000 absent using one of the elite law firms. It is an elite system using elite lawyers and rejecting almost everyone who is not elite. Disabled people are NOT considered elite and that is precisely why we have the ADA, to combat the elitism that is also known as discrimination.
This awful system is precisely what the 1925 Republican Congress, Republican president, and Republican Supreme Court wanted. Elitism in the Supreme Court is a rejection of civil rights because civil rights and election rights must get past the hurdle of an elite and exclusive system of being “chosen” by the Court instead of having a right to use the Court
Imagine if that’s how elections worked. Congress decides its voters. The President decides his voters. It seems ridiculous, but that is how the U.S. Supreme Court now works since 1925. The Court decides who the litigants will be and which disputes it will decide. This can only be a Due Process violation and it needs to stop. Imagine how many election disputes would be decided if the highest court was forced (like pre-1925) to decide every single dispute that came to it.
Don’t make any mistake. The courts rip and tear at our democracy more than any other body because they pretend to enforce the Constitution, but actually, they and their allies have created the least democratic institution possible. Elites choose elites and the preferred lawyers are elites. Everybody else can forget about it.
As usual, the easiest way to change this system is for Congress and the president to repeal the Judiciary Act of 1925 and give Americans back the right to appeal to the U.S. Supreme Court. That’s the system given to us by James Madison and we deserve it back. Let’s just say that this will not be happening with elitists like the Republican majorities in Congress and über-elitist Donald Trump as president.