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Does the Justice System Actually Dispense Justice ... Or Does It Just Serve the Powers-That-Be, Like the Other Branches of Government?

George Washington's picture




 

Washington’s Blog

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 see this, this this, this, this, this, this, this and this.

The Florida Court of Appeals also agreed with an assertion by FOX News that there is no rule against distorting or falsifying the news in the United States.

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:

  1. The judge doesn't want to hear the case; or
  2. 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.

 

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Mon, 11/15/2010 - 22:30 | 729349 Crab Cake
Crab Cake's picture

Judges are just politicians in robes. There is no justice to be found in this God forsaken cesspool of a nation. The judges serve the same interests that the two headed political monster does; bought lock stock and barrel. In many ways the judiciary, and it's partners from law enforcemement, are the most to blame. Where are the fucking cops? Oh thats right, the laws are only for the little people. Get caught with some pot, go to jail have your life ruined. Steal a few billion, and get a pat on the back.

Mon, 11/15/2010 - 23:31 | 729539 Bob
Bob's picture

Steal a few billion, and get a pat on the back.

Or a loving knob-job in the hot tub from Robert "Honey Pie" Mueller. 

http://en.wikipedia.org/wiki/Robert_Mueller

Mon, 11/15/2010 - 22:28 | 729341 Buck Johnson
Buck Johnson's picture

Spot on, spot on.  The double think is exactly why it's so dangerous.  It's almost as if we know deep down it can be unfair and unjust, but we have to believe it will do right even when we see it's not.  We have to hold onto the fiction, we just have too.  Our judicial system and our govt. and even our country has becomed aged, in such a little amount of time unlike other empires who take centuries.  Eventually we will go down the well trodden road of all empires in their twilight.  We are told that you can repeat history if you don't learn anything from what happened in the past.  The problem is many of our people truly believe the exceptional propaganda that has been coming out of our leaders for decades, that we can do no wrong and it's our right. 

Rome had a right, Ottoman Empire had a right, British Empire had a right etc. etc..  Where are they now, they are just shadows of what they used to be.  And I'm afraid that we will be a shadow also.

Mon, 11/15/2010 - 22:24 | 729328 honestann
honestann's picture

I do not consent to be governed.

That is the first answer to this article.  Think about that principle and what it means.  When the "system", whatever that system is where you live, becomes sufficiently corrupt, any rational human SHOULD formally state, "I do not consent to be governed".

Now, will this stop thugs paid by the predators-that-be from taxes extracted from you?  Rarely so.

Another important part of the answer is --- fundamentally law correctly identifies all organizations as "fictitious entities".  Thus, all governments, all corporations, all societies, clubs and other organizations literally (not figuratively) DO NOT EXIST.  That is a fact - one that very few humans understand.

Therefore, what a human can ethically do "on behalf of government or corporation or other organization" is identical to what that human can do absent those organizations.

Government is obsolete --- infinitely so.

Mon, 11/15/2010 - 22:05 | 729271 Kina
Kina's picture

Buy silver, crash this enterprise by skewering the corruptors.

Mon, 11/15/2010 - 23:27 | 729519 Bob
Mon, 11/15/2010 - 22:05 | 729270 weinerdog43
weinerdog43's picture

Great post George.  When the people lose respect for the law because it is implemented and enforced unequally, the societal fabric starts to tear.  We've had a good 200 year run with our Constitution, but when it is ignored by those who are sworn to uphold it, why in the world should the rest of us abide things we don't want to do?  Small acts of rebellion can quickly turn much bigger if people become frustrated and have nothing to lose.  It'll be interesting to see what happens when the 99 weeks expires.

Mon, 11/15/2010 - 22:01 | 729258 Kina
Kina's picture

Just one word for judges, banskters, corrupt politicians. Robespierre.

America will end up needing its own Committee of Public Safety.

Mon, 11/15/2010 - 23:33 | 729545 Bob
Bob's picture

This is indeed the waterloo for the rule of law in America. 

Mon, 11/15/2010 - 21:54 | 729236 Bob
Bob's picture

George, this is the latest breakthrough in your illustrious evolution. 

Forget 1984

We've breached complete dystopia in real time

Mon, 11/15/2010 - 21:18 | 729124 breezer1
breezer1's picture

well written and articulate gw. the us is dead and the dream only lives in a small percentage of citizens. save me some of that chicken and pass me the remote.

Mon, 11/15/2010 - 20:59 | 729078 Irwin Fletcher
Irwin Fletcher's picture

Poor people have known for a long time that the justice system serves TPTB. When it's their word against that of a law enforcement officer, no matter how reasonable the doubt, they're often just screwed. This isn't new, nor is the Supreme court's facilitation thereof. How about the Dawes Act of 1887, which was facilitated by the Supreme Court case of Kagama vs U.S? The Dawes Act essentially offered an ultimatum to sign on to the government's breach of treaty for a lousy consolation prize, or to lose everything for yourself and your ancestors. From enotes:

The Supreme Court explained the basis for this new approach to Indian policy when it ruled in the case of Kagama v. U.S. (1886) that Congress has complete power to regulate Native-American affairs. The Court stated that Indian tribes, "once powerful," were now "weak and diminished in numbers," economically and politically dependent on the United States. As a result, the Court said, the government had a duty to protect them, and with that duty came the power to regulate all aspects of their affairs. 

http://www.enotes.com/major-acts-congress/indian-general-allotment-act-d...

Mon, 11/15/2010 - 20:48 | 729053 Grill Boss
Grill Boss's picture

You gave up your rights when you got a birth certificate or "berth certificate" you docked into the USA out of your ship your "mother" then you became a strawman or the corporate entity that now represents the human or "freeman" that once was you.

Unwittingly your parents gave up your rights and you continue to do so as the owners of your "bond" or bondage are the bankers so now you are no more than mere cattle or cow

the certificate is issued to say what "cargo" has come off the ship. THIS IS CALLED UCC or UNIFORM COMMERCIAL CODE. This is how and why they collect taxes, as this is the interest or future payment of your labour and life on the bond, bought.... the certificate  at your birth or "berth" hence why on your cert your date (human date) and the date of issue (the day the corporation that represents what once was you) is different, at which point you have given up all your rights or you parents did for you before you even new what a "right" was

 

Look up strawman, UCC, and you will find that indeed this is very much true and very much true everywhere

Mon, 11/15/2010 - 21:32 | 729162 Irwin Fletcher
Irwin Fletcher's picture

Ah, so THAT's what backs our currency now. Nice.

Mon, 11/15/2010 - 20:24 | 728976 Miles Kendig
Miles Kendig's picture

The concept of lawful plunder is now so deeply ingrained that even honest servants of justice have been reduced to serving the very thing they are committed to oppose.  This unhappy state of affairs permeates every aspect of society to include philanthropy rendering the whole false.

Mon, 11/15/2010 - 20:11 | 728945 thedirtybubble
thedirtybubble's picture

So, we all know the ugly truth now... What are we going to do with this knowledge? Will we resign ourselves to becoming slaves to the CORPORATION or will we wake up and start living life the way we were meant to? It's high time we all started ignoring these washed up old men with the mentality of Pinky and the Brain and took a step into the bright dawning future. The first one now will later be last, for the times, they are a changin.

Mon, 11/15/2010 - 20:00 | 728911 Citxmech
Citxmech's picture
US Justice Department Prepares For Ominous Expansion Of Law Prohibiting 'Material Support' For Terro In late September the FBI carried out a series of raids of homes and anti-war offices of public activists in Minneapolis and Chicago. Following the raids the Obama Justice Department subpoenaed 14 activists to a grand jury in Chicago and also subpoenaed the files of several anti-war and community organizations. In carrying out these repressive actions, the Justice department was taking its lead from ...

http://www.eurasiareview.com/201011119630/us-justice-department-prepares-for-ominous-expansion-of-law-prohibiting-material-support-for-terrorism.html

More of the same, fyi... 

Mon, 11/15/2010 - 20:38 | 729022 nmewn
nmewn's picture

And yet...voter suppression by "selected" groups get a pass.

Strange days indeed.

Mon, 11/15/2010 - 19:52 | 728878 e_goldstein
e_goldstein's picture

George,

interesting read as usual. however, you may want to check your title.

Mon, 11/15/2010 - 19:59 | 728910 George Washington
George Washington's picture

Thanks...

Mon, 11/15/2010 - 20:31 | 728998 e_goldstein
e_goldstein's picture

glad to help.

Mon, 11/15/2010 - 19:47 | 728860 Mitchman
Mitchman's picture

For many decades, particularly since the '60's conservatives were vilified for wanting a "strict constructionist" view of the Constitution where the words meant exactly what they said.  Instead, we were told that the Constitution was a "living breathing document" that had to be flexible to the complexities of today's world as interpreted by a judge.  So how's that flexibility working out for you now?

Mon, 11/15/2010 - 21:57 | 729246 Fred Hayek
Fred Hayek's picture

Exactly.

I remember articles in Reason and Liberty, two libertarian magazines, from around 20 years ago which tried to make lefties see the basic libertarian point that you might like the extra-constitutional power that you create today but you have no idea how it will play out in the future.  Your only protection against it is to not create it.  Gambling that it will only be used for really nice things like you would do with it is naive.

Mon, 11/15/2010 - 21:49 | 729222 Bob
Bob's picture

As one of those complainers, I gotta give it to you: The law of unintended consequences should be kept front and center.  Too little, too late?

This is clearly a negation of the court rules themselves. 

Mon, 11/15/2010 - 19:34 | 728830 Rainman
Rainman's picture

Scalia returning from a duck hunting trip with Cheyney and has no steelshot in his torso....??  That says volumes. Like his hunting partner, Cheyney never gave a rat's ass about legislative intent either. These boyz musta' got along fine.

 

Mon, 11/15/2010 - 20:32 | 728996 nmewn
nmewn's picture

To this very day...it is still safer to hunt with a Cheney than to drive with a Kennedy ;-)

Mon, 11/15/2010 - 20:46 | 729047 George Washington
George Washington's picture

Thanks, nmewn, that actually made me laugh.

If you know of an example of a Democratic supreme court justice engaged in politicking, please let me know, and I'll add it.

Mon, 11/15/2010 - 21:17 | 729123 nmewn
nmewn's picture

"Thanks, nmewn, that actually made me laugh."

Aim to please GW ;-)

"If you know of an example of a Democratic supreme court justice engaged in politicking, please let me know, and I'll add it."

I don't believe I mentioned party affiliation...but I'm sure I could dig up a few...if that's really what you want...would the "enhanced revenue streams" of the Chairman of the House Ways and Means Committee do or will I have to stay within the confines of normal jurisprudence?...LOL.

Mon, 11/15/2010 - 21:24 | 729134 George Washington
George Washington's picture

nmewn, I'm post-partisan.  Any dirt could be interesting...

Mon, 11/15/2010 - 21:37 | 729182 nmewn
nmewn's picture

Well I think we can leave the Pelosi windmill interests aside as that's old news...as is Maxine Waters "banking" interests...how about this for "post-partisan dirt"...this could be the beginning of a beautiful friendship ;-)

What is new is that Harman is said to have been picked up on a court-approved NSA tap directed at alleged Israel covert action operations in Washington.

And that, contrary to reports that the Harman investigation was dropped for "lack of evidence," it was Alberto R. Gonzales, President Bush's top counsel and then attorney general, who intervened to stop the Harman probe.

Why? Because, according to three top former national security officials, Gonzales wanted Harman to be able to help defend the administration's warrantless wiretapping program, which was about break in The New York Times and engulf the White House.

As for there being "no evidence" to support the FBI probe, a source with first-hand knowledge of the wiretaps called that "bull****."

http://www.citizensforethics.org/taxonomy/term/1588

Mon, 11/15/2010 - 21:22 | 728772 DaveyJones
DaveyJones's picture

.  

Mon, 11/15/2010 - 19:12 | 728763 The Alarmist
The Alarmist's picture

Yes. Duh.

Mon, 11/15/2010 - 20:09 | 728942 knukles
knukles's picture

Ditto.  Orwell was right.

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