In 2000, Supreme Court Justice Ruth Ginsburg did something unprecedented. In her dissenting opinion in the Bush v. Gore case (which threw the election to Bush), Ginsburg ended her opinion with the words “I dissent”.
Believe it or not, this is a big deal. The standard etiquette for a judge – especially a supreme court justice – writing a dissenting opinion is to end with the phrase, “I respectfully dissent”. By leaving out the word “respectfully”, Ginsburg dropped normal judicial etiquette to protest an unconstitutional decision, more or less quietly declaring that a coup had occurred.
Supreme court justice Antonin Scalia said that he doesn’t care what the legislature intended when it passes a law. This is contrary to hundreds of years of American law, as legislative intent is supposed to be examined whenever legislation is ambiguous, or does not appear to directly or adequately address a particular issue, or when there appears to have been a legislative drafting error.
Scalia also went duck-hunting with Dick Cheney, even though the judicial and executive branches are supposed to keep their distance as part of the separation of powers.
Scalia and fellow high court justice Clarence Thomas also went to a secretive Koch brothers political event, where high-level republican political operatives planned out their plan of attack.
Supreme court justice Samuel Alito is also fundraising for republicans, which appears to conflict with the Code of Conduct for United States Judges. (I’m not picking on Republicans, as I think both parties currently serve the powers-that-be. These were just the most readily available examples of political shenanigans by supreme court justices).
And there are many judicial decisions which have sided with the powers-that-be at the expense of the little guy.
The Supreme Court’s ruling in Citizens United means that – under the guise of “free speech” – big corporations and wealthy individuals can basically buy politicians as well as judges. Similarly, the Florida Court of Appeals agreed with an assertion by FOX News that there is no rule against distorting or falsifying the news in the United States. And political candidates are largely free to lie during their campaigns. See this and this.
(Indeed, according to Thom Hartmann and Jim Hightower, the whole concept of “corporations as people” – which is the opposite of what the Founding Fathers intended – was based on a clerical mistake in the summary of a court opinion, which was then seized on by corporate lawyers and their allies on the bench).
And “rocket docket” judges are trampling on homeowners’ legal rights:
And as I pointed out last December, the American system of justice is in real trouble:
The New York Times is providing important coverage of the U.S. Supreme Court’s May 18, 2009 decision in the case known as Ashcroft v. Iqbal:
The lower courts have certainly understood the significance of the decision, Ashcroft v. Iqbal, which makes it much easier for judges to dismiss civil lawsuits right after they are filed. They have cited it more than 500 times in just the last two months.
“Iqbal is the most significant Supreme Court decision in a decade for day-to-day litigation in the federal courts,” said Thomas C. Goldstein, an appellate lawyer with Akin Gump Strauss Hauer & Feld in Washington.
Why is Iqbal such an important case?
As the Times notes:
For more than half a century, it has been clear that all a plaintiff had to do to start a lawsuit was to file what the rules call “a short and plain statement of the claim” in a document called a complaint. Having filed such a bare-bones complaint, plaintiffs were entitled to force defendants to open their files and submit to questioning under oath.
This approach, particularly when coupled with the American requirement that each side pay its own lawyers no matter who wins, gave plaintiffs settlement leverage. Just by filing a lawsuit, a plaintiff could subject a defendant to great cost and inconvenience in the pre-trial fact-finding process called discovery…
Information about wrongdoing is often secret. Plaintiffs claiming they were the victims of employment discrimination, a defective product, an antitrust conspiracy or a policy of harsh treatment in detention may not know exactly who harmed them and how before filing suit. But plaintiffs can learn valuable information during discovery.
The Iqbal decision now requires plaintiffs to come forward with concrete facts at the outset, and it instructs lower court judges to dismiss lawsuits that strike them as implausible.
“Determining whether a complaint states a plausible claim for relief,” Justice Anthony M. Kennedy wrote for the five-justice majority, “requires the reviewing court to draw on its judicial experience and common sense.”
Note those words: Plausible. Common sense.
So what is the real world effect of the Supreme Court’s decision?
The Times provides some hints:
“It obviously licenses highly subjective judgments,” said Stephen B. Burbank, an authority on civil procedure at the University of Pennsylvania Law School. “This is a blank check for federal judges to get rid of cases they disfavor.”
Courts applying Iqbal have been busy. A federal judge in Connecticut dismissed a disability discrimination suit this month, saying that Iqbal required her to treat the plaintiff’s assertions as implausible. A few days later, the federal appeals court in New York dismissed a breach of contract and securities fraud suit after concluding that its account of the defendants’ asserted wrongdoing was too speculative.
Indeed, the Plaintiff in Iqbal himself, was a Pakistani Muslim working and living in Long Island, who claims he was arrested 2 months after 9/11 and then beaten and tortured. But the court didn’t want to hear about it:
Justice Kennedy said Mr. Iqbal’s suit against two officials had not cleared the plausibility bar. All Mr. Iqbal’s complaint plausibly suggested, Justice Kennedy wrote, “is that the nation’s top law enforcement officers, in the aftermath of a devastating terrorist attack, sought to keep suspected terrorists in the most secure conditions available.”
In other words, the Court found the allegation that an innocent person was tortured as “implausible”. It has become apparent to everyone, however, that many innocent people were tortured.
The Iqbal decision is – literally – an assault by the Supreme Court on the American system of justice. For it prevents plaintiffs from having their day in court if either:
- The judge doesn’t want to hear the case; or
- The defendant has hidden the evidence of wrongdoing, so that the plaintiff cannot provide the details of defendant’s wrongdoing without the use of the formal discovery process which only starts once litigation has commenced
People may ask “the Supreme Court interprets and enforces the American justice system, so how can it gut that system?
Well, Congress members and the President are supposed to represent the interests of the American people. Have they always done so?
Judges – like people in the White House and Congress – are human beings with political and personal viewpoints. Some stick to the case precedent while others – no matter how high and mighty – abandon it for political or personal reasons. That is the dirty little secret that those who work inside the justice system know.
In rendering the Iqbal decision, the Supreme Court abandoned some of the fundamental principals of justice, leaving a system which only pays lip service to that word.
Several Supreme Court justices dissented with the majority’s opinion in Iqbal. As Raw Story writes:
Departing Justice David H. Souter sided with the minority in this case, expressing dismay in his dissent and suggesting the decision could “upend,” said the Times, the federal civil litigation system. He argued that complaints should be accepted “no matter how skeptical the court may be,” so long as the accusations are not “sufficiently fantastic to defy reality as we know it.”
“[Claims] about little green men, or the plaintiff’s recent trip to Pluto, or experiences in time travel,” he said, should be the bar for disqualification.
Justice Ruth Bader Ginsburg agreed, suggesting the court had “messed up the federal rules” for civil suits.
Now, Chris Floyd and Yves Smith point out another worrisome Supreme Court decision:
If the president or one of his subordinates declares someone to be an “enemy combatant” (the 21st century version of “enemy of the state”) he is denied any protection of the law. So any trouble-maker (which means anyone) can be whisked away, incarcerated, tortured, “disappeared,” you name it. Floyd’s commentary:
After hearing passionate arguments from the Obama Administration, the Supreme Court acquiesced to the president’s fervent request and, in a one-line ruling, let stand a lower court decision that declared torture an ordinary, expected consequence of military detention, while introducing a shocking new precedent for all future courts to follow: anyone who is arbitrarily declared a “suspected enemy combatant” by the president or his designated minions is no longer a “person.” They will simply cease to exist as a legal entity. They will have no inherent rights, no human rights, no legal standing whatsoever — save whatever modicum of process the government arbitrarily deigns to grant them from time to time, with its ever-shifting tribunals and show trials.
It is hard to overstate the significance of this horrid decision. The fact that the Supreme Court authorized this land grab says we no longer have an independent judiciary, that the Supreme Court itself is gutting the protections supposedly provided by the legal system. Per Floyd:
In fact, our most august defenders of the Constitution did not have to exert themselves in the slightest to eviscerate not merely 220 years of Constitutional jurisprudence but also centuries of agonizing effort to lift civilization a few inches out of the blood-soaked mire that is our common human legacy. They just had to write a single sentence.
Now Floyd saw this mainly as an issue of the treatment of enemy combatants and Obama hypocrisy about torture, which is bad enough:
The Constitution is clear: no person can be held without due process; no person can be subjected to cruel and unusual punishment. And the U.S. law on torture of any kind is crystal clear: it is forbidden, categorically, even in time of “national emergency.” And the instigation of torture is, under U.S. law, a capital crime. No person can be tortured, at any time, for any reason, and there are no immunities whatsoever for torture offered anywhere in the law.
And yet this is what Barack Obama — who, we are told incessantly, is a super-brilliant Constitutional lawyer — has been arguing in case after case since becoming president: Torturers are immune from prosecution; those who ordered torture are immune from prosecution….let’s be absolutely clear: Barack Obama has taken the freely chosen, public, formal stand — in court — that there is nothing wrong with any of these activities.
Yves here. The implications are FAR worse. Anyone can be stripped, with NO RECOURSE, of all their legal rights on a Presidential say so. Readers in the US no longer have any security under the law.
Roman citizens enjoyed a right to a trial, a right of appeal, and could not be tortured, whipped, or executed except if found guilty of treason, and anyone charged with treason could demand a trial in Rome. We have regressed more than 2000 years with this appalling ruling.
Is America still a nation of laws? Or is it a nation in which judges get to throw out cases soon after filing because the plaintiffs claims go against the judge’s belief system or world view and the President can decide that someone is entitled to no legal protection whatsoever?
You know that Congress and the White House are acting like lapdogs to the powers-that-be. The question is whether the judiciary is really that different.
Indeed, professor John Hasnas argues that Americans are allowing themselves to be subjected to tyranny because they naively believe that the justice system is following the rule of law:
I believe that, much as Orwell suggested, it is the public’s ability to engage in this type of doublethink, to be aware that the law is inherently political in character and yet believe it to be an objective embodiment of justice, that accounts for the amazing degree to which the federal government is able to exert its control over a supposedly free people. I would argue that this ability to maintain the belief that the law is a body of consistent, politically neutral rules that can be objectively applied by judges in the face of overwhelming evidence to the contrary, goes a long way toward explaining citizens’ acquiescence in the steady erosion of their fundamental freedoms.
As a myth … the concept of the rule of law is both powerful and dangerous. Its power derives from its great emotive appeal. The rule of law suggests an absence of arbitrariness, an absence of the worst abuses of tyranny. The image presented by the slogan “America is a government of laws and not people” is one of fair and impartial rule rather than subjugation to human whim. This is an image that can command both the allegiance and affection of the citizenry.
The belief that there is [an impartial rule of law in America] serves to maintain public support for society’s power structure ….
Note: I am not saying that all judges are servants to those in power. There are quite a few courageous judges who follow principle and the rule of law, and who rule for the little guy. Unfortunately, the fact that we all cheer for such judges when we read about their decisions shows that they are exception which prove the rule.