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Thursday, June 25, 2020

Not a Supreme Court, but a Supreme Legislature


I think Edmund Burke only got it half right when he said: "Those who don't know history are doomed to repeat it." I would add: "and they will have no idea of why what is happening is happening." Case in point as Reuters recently reported: "The U.S. Supreme Court on Monday declined to take up a series of cases seeking to expand gun rights . . ." Thus the Supreme Court is no longer a Court, but instead a Super-Legislature made up of nine (9) unelected, tenured for life, justices. The Framers of our Constitution would be appalled that the Court had become a second, superior legislature. So, dear reader, come with me on a brief history lesson to understand how this fundamental change in the separation of powers came about that brought us to where we are today.

Since he first entered public life, William Howard Taft – the 27th President of the United States (1909–1913) – really
wanted to be Chief Justice of the United States Supreme Court.1 In 1921, courtesy of President Harding, Taft received that appointment.

As early as 1908, Taft was seeking a new and limited role for the Court he would ultimate guide into its present-day incarnation: a Supreme Court with: “jurisdictional limitations, either in amount in controversy or in the subject matter of suits,” or by “discretionary writ of certiorari.”2  Taft was in the minority calling for these radical changes in a court that was essentially the one envisioned by the founding fathers – a pedigree that few in Congress were willing to tamper with. “Congress was reluctant to reform many aspects of the federal judicial system because it viewed the Judiciary Act of 1789 as the implementation of the Framers' vision of an independent and robust judiciary.”3

Indeed, in 1910, then Chief Justice Edward White, whom Taft had appointed in 1910, refused to seek congressional action to change the jurisdiction of the Supreme Court recognizing that such change would: “break down the separation of the political branches of government from the judiciary.”4 As soon as Taft opened his first term as Chief Justice in 1921, he formed a committee of three other Justices to draft legislation to radically change the  Supreme Court’s jurisdiction.5   In February of the following year, Taft enlisted the support of the American Bar Association by publishing articles in support of his Committee’s proposed legislation.

No previous legislative proposal had proposed to make the Supreme Court a purely discretionary court of appeal.6  To Congress he promised that petitions to invoke such discretion would be given “the most careful consideration,” and that only petitions that were “frivolous” or addressed to principles of law that were “well settled.” would be summarily denied7.  In essence, Taft’s argument was similar to that of the scorpion in the fable of the scorpion and the frog: “Trust Me”.8

In testimony before Congress in support of what was now known as the “Judges’ Bill”, Taft rejected arguments that the bill gave the Supreme Court “too wide discretionary power” instead again promising that each petition received by the Supreme Court would be “carefully determined by each member of the Court” and “discussed and voted on.”9 Otto von Bismarck’s maxim that: “Laws are like sausages, it is better not to see them being made”, was never proven more true than by what happened next.  “Almost without discussion”, on February 2, 1925, the House passed the bill.10 The Senate passed the bill with only one vote in opposition and President Coolidge signed it into law on February 13, 1925.11 

William Howard Taft now had the prime seat on and the "discretionary jurisdiction" Supreme Court he had been seeking for twenty years.  The results would be a profound change from the judiciary envisioned by the Founding Fathers. In Article III, those Founding Fathers had spelled-out the appellate jurisdiction of the Supreme Court: “the Supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.”  But was “discretionary jurisdiction” and “exception” or a “regulation” that Congress was empowered to make? In the Judiciary Act of 1925, Congress changed “shall” to “may”: “A final judgment or decree in any suit in the highest court of a State . . .may be reviewed by the Supreme Court upon a writ of error.”12 A similar section was made applicable to appeals from the federal district and circuit courts.

Chief Justice Marshall would be mortified for his vision – and that of the Founding Fathers – of the Supreme Court deemed it “treason”13 to fail to decide a case within the Court’s jurisdiction. No one would challenge the Constitutionality of this radical change from a court of mandatory jurisdiction to a court of discretionary jurisdiction – and hence a de facto super-legislature without electoral control – for over seventy five years.

But the story of that challenge, by me, must wait for another day.


1 Henry F. Pringle, The Life and Times of William Howard Taft, (2d ed. 1964), note 73, at 102.
2 Edward A. Hartnett, Questioning Certiorari: Some Reflections Seventy-Five Years After the Judges’ Bill, 100 Columbia Law Review. 1643, 1644 (Nov. 2000), note 12, at 1661 n.74.
3 Charles G. Geyh, Judicial Independence, Judicial Accountability, and the Role of Constitutional Norms in Congressional Regulation of the Courts, 78 Indiana Law Journal 153, 171 (2003).
4 David H. Burton, Taft, Holmes, and the 1920s Court: An Appraisal (1998), note 92, at 117.
5 Hartnett, supra, at 1663.
6 Hartnett, supra, note 12, at 1666.
7 William Howard Taft, Three Needed Steps of Progress, 8 American Bar Association Journal 36 (Jan. 1922).
8 A scorpion and a frog meet on the bank of a stream and the scorpion asks the frog to carry him across on its back. The frog asks, “How do I know you won't sting me?” The scorpion says, “ Trust me, because if I do sting you, I will die too.” The frog is satisfied, and they set out, but in midstream, the scorpion stings the frog. The frog feels the onset of paralysis and starts to sink, knowing they both will drown, but has just enough time to gasp “Why?” Replies the scorpion: “Its my nature...”
9 William Howard Taft, Possible and Needed Reforms in the Administration of Justice in Federal Courts, 8 American Bar Association Journal 601, 603 (Sept. 1922).
10 Hartnett, supra, at 1695.
11 Hartnett, supra, at 1704.
12 43 Stat. 936, Chapter 229, §237.
13 Cohens v. Virginia, 19 U.S. (6 Wheat.) 264 (1821)

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Monday, May 11, 2020

A Tale Of Two Indictment Dismissals: Trump’s DOJ’s Flynn Case vs. Obama’s DOJ’s Duke Case

Cass Sunstein on the Rule of Law — Confessions of a Supply-Side ...
I could not help but gag on my breakfast on May 9th when reading the Business Insider article entitled “There is no precedent that anybody can find': Obama reportedly excoriated the DOJ's decision to drop the Michael Flynn case in a private call.”  Apparently, Mr. Obama has forgotten his DOJ’s dismissal without explanation of the U.S. Capitol-Bombing, Domestic Terrorist, Elizabeth Anna Duke.  Let’s compare cases and see if you don’t gag too on the hypocrisy.

In United States Of America v. Michael T. Flynn, the U.S. Government filed a twenty (20) page Motion To Dismiss the Criminal Information against Michael T. Flynn.  That motion detailed: (i) the factual predicate for such a motion and (ii) the legal status of the government and court in addressing that motion.  While the entire Motion deserves reading by any fair-minded Citizen before they form any opinion regarding that Motion, the sum and substance was that:

“[T]he Government has concluded that the interview of Mr. Flynn was untethered to, and unjustified by, the FBI’s counterintelligence investigation into Mr. Flynn ‒ a no longer justifiably predicated investigation that the FBI had, in the Bureau’s own words, prepared to close because it had yielded an “absence of any derogatory information.” . . The Government is not persuaded that the January 24, 2017 interview was conducted with a legitimate investigative basis and therefore does not believe Mr. Flynn’s statements were material even if untrue. 

That Motion now pends before the Honorable Judge Sullivan.  Stop eating before continuing reading:

Lost to the memory of most, Elizabeth Anna Duke was indicted on May 11, 1988, along with six other individuals, for acts of violence against the United States, including the bombing of the United States Capitol on November 7, 1983.  After her arrest in 1985, Elizabeth Duke was released on $300,000 bail over the strenuous objections of the United States Attorney.  She subsequently failed to re-appear as ordered and a fugitive bench warrant was issued for her arrest. To date, Elizabeth Duke has not been captured pursuant to that warrant of arrest and she is still listed on the F.B.I. 's Most Wanted list.


Fast forward twenty-five years to June 17, 2009. Shortly after Mr. Obama was sworn in as President, a putative Assistant United States Attorney made an oral motion to dismiss the Indictment and quash the arrest warrant for the fugitive, domestic terrorist, United-States-Capitol-bombing Elizabeth Anna Duke which was granted by Magistrate-Judge Deborah A. Robinson.

Neither the Oral Motion nor the Order dismissing the Indictment gave any reason for this extraordinary action of dismissing an indictment against a dangerous felony fugitive. When I finally forced Magistrate-Judge Robinson to release the transcript, I discovered that neither the law nor the facts granted to Magistrate-Judge Robinson the authority to dismiss the indictment against Elizabeth Anna Duke.  The tale from that point forward gets very sordid and calls into question Mr. Obama’s involvement with the radical, Weather Underground movement of the 70s and 80s.  A full recitation of my investigations and the appalling indictment of Mr. Obama’s abuse of the legal system can be found at my web-page on Elizabeth Anna Duke.

So Mr. Obama, No: a legally-justified (if not compelled) Motion to Dismiss in the Flynn case is not as you claim “the kind of stuff where you begin to get worried that basic ‒ not just institutional norms ‒ but our basic understanding of rule of law is at risk.”  Simply stated, the record in the Flynn case is available for all to see and judge. That is what the rule of law requires: transparency of government action.

Rather, when you send an attorney who appears not to be a DOJ employee to dismiss an indictment against a fugitive without explanation before an Article I magistrate-judge who: (i) does not have jurisdiction to dismiss an indictment, (ii) misrepresented herself on the dismissal order as an Article III judge, (iii)  patently lies on her dismissal order and (iv) coincidentally sees her son get preferential federal treatment for his felony arrest for drugs and weapon charges, then, Mr. Obama, I have a real concern that on your watch the “rule of law [was] at risk.” Serious risk.

Care to respond?



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Friday, March 27, 2020

The 2nd Amendment, Stephen Decatur & Me

Stephen Decatur
I didn't really want this fight.  When I moved to New York in 2016, I simply wanted to have my pistols for protection and work (I am licenced as a Nuisance Wildlife Control Operator and am legally obligation to "take", i.e. "kill", animals suspected of rabies for testing.)

But then I ran into New York's Pistol Licensing scheme and found it wanting in due process, equal protection and respect for the Second Amendment.  I wished I could just look away, but  . . . I couldn't.  So as few can afford to challenge New York and I do know how, it was off to the races.

Now, after waiting six hundred (600) days for a decision on my Application for a pistol license, I received that decision on March 9, 2020.  In that Decision, Licensing Officer (and County Court Judge) Watches rested his sole reason for denying my Application that: “[Sibley] has failed to demonstrate good moral character.” Notably, Licensing Officer Watches did not find that I had failed to demonstrate “good cause” for such a license.

Fortunately, it is not 1820 and I don't have to challenge Licencing Officer Watches to a duel ala Stephen Decatur to defend my Honor and Family Name as Decatur did 200 years ago almost to the day.  Instead, there is a Court system to address this slur and I look forward to vigorously pursing vindication.

To that end, I have recently filed a pleading which briefly (well, as briefly as a lawyer can) and indisputably demonstrates structural and systemic failures in New York’s pistol licensing procedures and seeks relief not only for me but system-wide reforms.  I have also asked the Court to "fish or cut bait" as my Fundamental right to self-defense in my home is at issue. 

The noted jurist and High Priest of U.S. Jurisprudence, William Blackstone said it best in 1769: “[Self-defense is] justly called the primary law of nature, so it is not, neither can it be in fact, taken away by the laws of society.” 3 William Blackstone, Commentaries 139.  Yet, this is what New York has done to me . . . and 13 million other law-abiding New York Citizens.

Particularly now when the foundations of our civil society are being shaken, this need for self-defense is more pressing than anytime in our Country's history.

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