Me vs. The Supremes – Part XIII

As I wrote in my first post on “Me vs. The Supremes”, I believe that the rule of “discretionary jurisdiction” is an oxymoron not only as it completely undermines the constitutional structure envisioned and deployed by our founding fathers and mothers but because it has become the favorite tool of a new breed of tyrants – judges. . .

The premise for this view is best articulated by quotations from two of the leading jurists this Country has known. First, Justice Joseph Story in his Commentaries on the Constitution of the United States §377-78 (1983):

The case is not alone considered as decided and settled; but the principles of the decision are held, as precedents and authority, to bind future cases of the same nature. This is the constant practice under our whole system of jurisprudence. Our ancestors brought it with them, when they first emigrated to this country; and it is, and always has been considered, as the great security of our rights, our liberties, and our property. It is on this account, that our law is justly deemed certain, and founded in permanent principles, and not dependent upon the caprice or will of judges. A more alarming doctrine could not be promulgated by any American court, than that it was at liberty to disregard all former rules and decisions, and to decide for itself, without reference to the settled course of antecedent principles. This known course of proceeding, this settled habit of thinking, this conclusive effect of judicial adjudications, was in the full view of the framers of the constitution. It was required, and enforced in every state in the Union; and a departure from it would have been justly deemed an approach to tyranny and arbitrary power, to the exercise of mere discretion, and to the abandonment of all the just checks upon judicial authority. (Emphasis added.)

Second, as Chief Justice Marshall in Cohens v. Virginia, 19 U.S. 264, 6 Wheat. 264, 404 (1821) stated:

It is most true that [the United States Supreme Court] will not take jurisdiction if it should not; but it is equally true that it must take jurisdiction if it should. The judiciary cannot, as the legislature may, avoid a measure because it approaches the confines of the Constitution. We cannot pass it by because it is doubtful. With whatever doubts, with whatever difficulties, a case may be attended, we must decide it, if it be brought before us. We have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given. The one or the other would be treason to the Constitution. Questions may occur which we would gladly avoid, but we cannot avoid them. All we can do is to exercise our best judgement, and conscientiously perform our duty. (Emphasis added).

Upon these two premises my objection to “discretionary jurisdiction” lies. First, as Chief Justice Story noted that it would be “ tyranny and arbitrary power” if a court were “at liberty to disregard all former rules and decisions, and to decide for itself, without reference to the settled course of antecedent principles.” Second, as Chief Justice Marshall stated: “We have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given. The one or the other would be treason to the Constitution.”

Yet, by the gradual expansion of “discretionary jurisdiction” to all cases presented to the Supreme Court, we now have that very situation that Justice Story feared: a judiciary able to exercise “tyranny and arbitrary power” as it has relieved itself of its obligation to bind itself to the same result in “future cases of the same nature.” Thus law as it is applied to me is not necessarily the same law that is applied to you. This is not the “rule of law” but the rule of men. And, as James Madison (picured above) wrote in the Federalist No. 51: “If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.”

Our government in the person of the judicial branch has removed all controls over themselves by allowing discretionary jurisdiction to remove the obligation to treat all men and women equally. Coupled with the doctrine of absolute judicial immunity which allows the justices of the Supreme Court to ignore the law, the basis for my claim that we have slipped into state of judicial tyranny is well founded.