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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The most appalling thing a judge can say . . .

During the recent oral arguments of a hotly debated case -- Epic Systems Corp. v. Lewis -- Chief Justice John Roberts, in a back-and-forth with University of Virginia law professor Daniel Ortiz said the most appalling thing a judge can say: Let the desired results dictate the law.

In that case, Justice Roberts observed that a decision in favor of Ortiz’s client would invalidate employment agreements covering 25 million people – a step that several of the justices would be reluctant to take.

I find this appalling for Justice Roberts is not concerned with what the law requires, but rather with what effect enforcing the law will have.  This is contrary to the very spirit of the Rule of Law which requires that the law dictate the results, not the desired results dictates the law.

Stated another way, if those 25 million employment agreements violate the law -- and a very considerable weight of the legal analysis points to that conclusion -- then those agreements violate the law and they must be invalidated. Justice Roberts is arguing that certain cases are "too big" to be determined by law but rather must be determined by the amount of inconvenience to the employer.  Sickening from a jurist, particularly one who sits as Chief Justice of the U.S. Supreme Court.

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1825 Days and Still Counting

Today, the U.S. Supreme Court will consider Sibley v. District of Columbia Board of Elections and Ethics, Case No.: 12-467.  My Petition seeks review of the practice of the D.C. Court of Appeals of dismissing my suit before they allowed me to be heard on the Defendant's motion to dismiss.  No sense hearing the other side when you have already made up your mind!  Yet I have reason to believe they might not rule any time soon . . .

I have had a case, Sibley v. Alito et al, pending at the Supreme Court of the United States since January 4, 2008 -- some 1825 days.  I think that is the record for a case pending without resolution at the Supreme Court.  I have explained that case in detail before.

My point today is not the merits of that long pending case -- though I believe the case has great merit -- but rather how can a court refuse to decide a case for over five (5) years?  I fear the answer is that through the collusion of the executive and judicial branches -- with the paralyzed legislative branch out to lunch -- we now have a system that immunizes its actors from any consequence for misfeasance or malfeasance in office.  In my case, the Supremes can refuse to rule and there is no consequence.  So why would they rule when to do so in my case would expose the very hypocrisy of the judicial system and its actors?  They wouldn't and thus they don't.

Nice work if you can get it.

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Me vs. The Supremes IV: Update #2

As expected, three judges of the United States Court of Appeals for the District of Columbia Circuit have – without allowing me to file a record on appeal or have oral argument – summarily affirmed the dismissal of my suit by the lower court. I have, of course, filed a motion for rehearing pointing out the intellectual hypocrisy of their order. The most glaring example holds that I cannot sue the District of Columbia Court of Appeals, and then cites District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 482-86 (1983) for the proposition that federal courts can not review Article I court’s decisions. Anyone notice the name of Appellant? Why can some people sue the District of Columbia Court of Appeals and others, like me, can not? Inquiring minds want to know.

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154 Years Ago Today . . .

The New York Times reported that the United States Supreme Court issued its opinion in Dred Scott v. Sandford, 60 U.S. 393 (1857). In that decision, the Times reported that the Court held, remarkably to our modern eyes, that "Negroes, whether slaves or free, that is, men of the African race, are not citizens of the United States by the Constitution."

Perhaps it is time to reexamine the unconstitutional but common notion that our Supreme Court Justices are infallible and unaccountable. I know Dred Scott's attorney -- my great, great grandfather Montgomery Blair -- did and, compelled by his sacrifice in doing so, so do I.

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1095 days and counting . . .

Today marks the third anniversary of the conference the United States Supreme Court held in Sibley vs. Alito, et al, on January 4, 2008, and yet they have not rendered a decision. Why do I have to wait over three (3) years for a simple decision which -- if the Court is intellectually honest -- must admit that the Justices of the Supreme Court supremely violated equal protection, the doctrine of nemo judex parte sua and 28 U.S.C. 455.

By way of background:

In Montgomery Blair Sibley vs. The United States Supreme Court, The Eleventh Circuit Court of Appeal, Steven Breyer, Ruth Bader Ginsburg, Anthony Kennedy, Sandra Day O'Connor, William Rehnquist, Antonin Scalia, David Souter, John Paul Stevens and Clarence Thomas, Supreme Court Case Number: 05-459, on November 14, 2005, Defendants Stephen Breyer, Ruth Bader Ginsburg, Anthony Kennedy, Antonin Scalia, David Souter, John Paul Stevens and Clarence Thomas joined in entering an order in that case denying my Petition for Writ of Certiorari.

Yet, in Montgomery Blair Sibley vs. Steven Breyer, Ruth Bader Ginsburg, Anthony Kennedy, Sandra Day O'Connor, Antonin Scalia, David Souter, John Paul Stevens and Clarence Thomas, Case Number: 07-6522, these same Defendants on October 29, 2007, disqualified themselves from considering my Petition. In both instances, the Justices were named defendants in the respective complaints.

Accordingly, this differing treatment demanded explanation by the Court. Accord: “. . .the province and duty of the judicial department to say what the law is.” Marbury v. Madison, 1 Cranch 137, 177 (1803). This obligation is particularly acute when exactly the same fact patterns result in diametrically opposed results.

So, why am I waiting?

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Me vs. The Supremes IV: A New Hope

Once more unto the breach, dear friends, once more;

In peace there's nothing so becomes a man

As modest stillness and humility:

But when the blast of war blows in our ears,

Then imitate the action of the tiger;

Stiffen the sinews, summon up the blood,

Disguise fair nature with hard-favour'd rage;

Then lend the eye a terrible aspect;

Like greyhounds in the slips,

Straining upon the start.

The game's afoot.

Shakespeare's Henry V, Act III

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Me vs. The Supremes -- Epilogue -- Part III

Finally, the implications of my third suit against the Supremes are, like the second suit, profound. Again, a little background is necessary to understand "the precise issues presented” by that third suit.

My third suit against the U.S. Supreme Court sought the forfeiture of their offices as Justices for "misbehavior" in office in violation of Article III's "good behavior" requirement. As I expected, eight of the nine justices disqualified themselves from hearing the case as they were Defendants to the suit. I have detailed the particulars of that third lawsuit before. In sum, on petition to the U.S. Supreme Court, three issues were presented:

1. WHETHER, sua sponte dismissals and summary affirmances violate the Rules Enabling Act?

2. WHETHER, the Constitution authorizes a judicially-ordered forfeiture of an Article III actor’s office for lack of “good behavior”?

3. WHETHER, a clerk of the Supreme Court is entitled to absolute judicial immunity from suit regardless of the factual allegations against him?

By disqualifying themselves, the Justices of the Supreme Court “affirmed” the District Court of Appeal’s decision which had answered these questions. Accordingly, it is now the law of this land that: (i) judges can dismiss cases without allowing the filing party to be heard, (ii) only Congress can remove a federal judge, but there is no removal for misbehavior by a judge and (iii) Court clerks can throw-out pleadings and suffer no consequence. See: See: Sibley v. Alito, et al., , Case No.: 09-5069, (D.C. Cir., November 30, 2009), affirmed, 559 U.S. ___ , (2010).

Quite a system we now have.

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Me vs. The Supremes -- Epilogue -- Part II

Following up on the implications my second suit against the Justices of the United States Supreme Court has for the future of judicial tyranny, a little background is necessary to understand "the precise issues presented” by that second suit.

In 2004, I first sued the then-Justices of this Court seeking a declaratory decree that they violated my rights when they repeatedly denied certiorari review of matters I brought before them. I was properly challenging the “discretionary” appellate jurisdiction of the Supreme Court which I claimed the Supreme Court had improperly assumed with the complicity of Congress thereby destroying the rule of law as the Founding Fathers envisioned it. See: The Justicide Brief for an extended analysis of this position.

When those Justices denied certiorari of that first suit without disqualifying themselves from that first suit, I then filed my second suit for damages against seven of the Justices claiming that under 28 U.S.C. § 455 and the fundamental rights secured to me by the Ninth Amendment, those Justices were obligated to disqualify themselves because they were named defendants in that first action and I was entitled to money damages for their failure to follow the law.

Predictably, the District Court dismissed the second suit holding that the doctrine of judicial immunity barred the second suit. That dismissal was affirmed by the United States Court of Appeals for the District of Columbia Circuit. Thus, I then took to the United States Supreme Court one “precise issue”: Whether the judicially-created doctrine of judicial immunity may be extended to erase the fundamental right of a litigant to the protections of Constitutional right of nemo judex parte sua ("no man shall judge his own case") and the Congressionally-created right found at 28 U.S.C. §455 both of which guarantee an impartial tribunal.

Unlike the first case in which the entire Supreme Court ruled, in the second case, seven of the Justices disqualified themselves because they were parties to the second suit. Thus, lacking a quorum, the Court by statute affirmed the Court of Appeals in holding that Justices can break the law and have no personal liability as a result. See: Sibley v. Breyer, Case No.: 07-5009, (D.C. Cir., May 15, 2007), affirmed, ___ U.S. ___ , 128 S.Ct. 514 (2007).

Nice work if you can get it.

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SIBLEY vs. BREYER, et al. Case Re-Appears

Recently, I blogged on the issue of why my second case against the Supreme Court -- SIBLEY vs. BREYER, et al. -- had disappeared from the Supreme Court's public docket. I have been waiting over two (2) years for the Supremes to rule upon my motion to reconsider.

I then filed with the Supreme Court Clerk my "Notice of Passage of Time and Removal of Docket From Public Record". Of note, such concealment of the docket in SIBLEY vs. BREYER, et al. by the Clerk of the Supreme Court may well be a criminal offense: 18 U.S.C. § 2071. Concealment, removal, or mutilation generally.

Yesterday, the docket reappeared. Did the Supremes really think I would go quietly into that good night and take their intellectual dishonesty and law-breaking documentation with me?

I think not.

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Me vs. The Supremes -- Epilogue?

My third suit against the U.S. Supreme Court sought the forfeiture of their offices as Justices for "misbehavior" in office in violation of Article III's "good behavior" requirement. As I expected, eight of the nine justices disqualified themselves from hearing the case as they were Defendants to the suit in an order entered on February 26. In that order, they invoked 28 U.S.C. §2109 which states:

In any other case brought to the Supreme Court for review, which cannot be heard and determined because of the absence of a quorum of qualified justices, if a majority of the qualified justices shall be of opinion that the case cannot be heard and determined at the next ensuing term, the court shall enter its order affirming the judgment of the court from which the case was brought for review with the same effect as upon affirmance by an equally divided court.

The order has generated some publicity. Am I, as one influential commentator stated about me: "a hazard to his clients and to taxpayers" in pursuing this suit. Or am I, like the photo above crazy, but crazy like a fox? Maybe, maybe not; but now, for the first time, I can reveal the method to my madness . . .

My overarching concern was most eloquently stated by Patrick Henry who reportedly said:

Power is the great evil with which we are contending. We have divided power between three branches of government and erected checks and balances to prevent abuse of power. However, where is the check on the power of the judiciary? If we fail to check the power of the judiciary, I predict that we will eventually live under judicial tyranny.

I believe, we now live under that prophesied "judicial tyranny" because Judges – and Justices – have relieved themselves of the Constitutionally-established "checks" upon their power. To indelibly establish this point, I commenced these three separate suits against the Supreme Court and its Justices.

Now, a brief foray into Supreme Court arcanum is necessary to understand what I have done and why. When a person petitions the United States Supreme Court for certiorari – that is to review a lower court decision – the Supreme Court either grants or denies the petition. In the first instance, the case is then heard and a written decision is rendered. That happens less that 1% of the time.

In the second instance, the denial of certiorari -- which happens 99% of the time -- acts as a legal nullity. "The denial of a petition for certiorari from a state court judgment . . .has no legal significance. . . ." Brown v. Allen, 344 U.S. 443 (1953). Moreover, a "denial of certiorari may be motivated, among other reasons, by a desire to have different aspects of an issue further illumined by the lower courts." Maryland v. Baltimore Radio Show, Inc., 338 U.S. 912 (1950). Read another way – this means that politics – not the rule of law – controls when the Supreme Court hears a case.

Thus, I could – and did – repeatedly petition the Supreme Court to hear grotesque violations of fundamental and constitutional rights by the Florida Courts and Florida Bar. Yet the Supreme Court was at liberty to -- and did -- ignore me thereby shielding their brethren in Florida from judicial review or ruling on lawsuits which sought to re-impose the "checks" upon the judiciary.

Hence, I realized that so long as the Fox was guarding the Hen House, I would never see a Chicken, so to speak. Thus, eight years ago, I commenced this legal foray to establish the record which would – I hope – force the legislative branch to action to remedy the "judicial tyranny" under which we live.

For when the Supreme Court invoked in the second and third suits against them 28 U.S.C. §2109 to avoid adjudication, they in fact did adjudicate and create binding legal precedent which I hope will come back to haunt them. That is because by invoking 28 U.S.C. §2109, they affirmed the judgment of the circuit court "with the same effect as upon affirmance by an equally divided court".

What does that mean? As the Court noted in Mandel v. Bradley, 432 U.S. 173, 176 (1977), the precedential effect of a such an affirmance extends to "the precise issues presented and necessarily decided by those actions." Stated another way, the Supreme Court has by invoking 28 U.S.C. §2109 summarily affirmed the lower courts' decisions in the two cases against them.

In Hutto v. Davis , 454 U.S. 370, 374 (1982), the Supreme Court recognized that "unless we wish anarchy to prevail within the federal judicial system, a precedent of this Court must be followed by the lower federal courts no matter how misguided the judges of those courts may think it to be."

Thus, the "precedential effect" of "the precise issues presented" in my second and third cases against the Supreme Court and its Justices are now the supreme law of the land and binding on all the lower federal courts.

This blog has gone on long enough today and if I continue, I risk losing blog status and moving into Law Review status. Hence, I will discuss the "the precise issues presented" in my second and third cases against the Supreme Court and its Justices and the implications they have for the future of judicial tyranny in succeeding posts to this blog.

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A North American Desaparecidos?

Desaparecidos is the Spanish word for "The Disappeared." For thousands of Argentine families, this word has become a symbol of a long harrowing nightmare. Between 1976 and 1983 - under military rule - thousands of people, most of them dissidents and innocent civilians unconnected with terrorism, were arrested in Argentina and then vanished without a trace.

Though I don't claim a fate as severe as those Argentines, the behavior of this government has similarities to that of the military junta which seized power in Argentina and went on a campaign to wipe out its opponents.

Clearly, I am an opponent of the Judicial Junta which has seized power in these United States and now that Judicial Junta is seeking to make me disappear too. Let me explain

First, readers will recall that I have had pending at the United States Supreme Court a petition for over two years. The public docket for that case - 07-6522 - reported that delay until recently. Now, that public docket has disappeared. See for yourself at the Supreme Court's website.

Likewise, I have recently began documenting my battles with the Florida Supreme Court. In particular, I had filed pleadings on January 19 and 26, 2010, regarding Governor Crist's much ballyhooed Statewide Grand Jury, as the Florida Supreme Court docket reflected. Yet now, that docket has been altered to make my pleadings disappear.

Making public records disappear is a great trick in this virtual world. For as Winston Churchill famously said: "History is written by the victors". Thus, I think it not so far-fetched to wonder if the Judicial Junta is trying to make me virtually disappear too.

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Me vs. The Supremes – Final Chapter

Two Thousand Fifteen Days (2015) days ago, on July 9, 2004, I filed my first of three lawsuits against the Justices of the United States Supreme Court challenging their doctrine of discretionary jurisdiction which allows them to decide only 0.08% of the cases presented to them. My following two lawsuits challenged their immunity for breaking the law in the first lawsuit.

Now, Five and a half (5 1/2) years later, I have, like St. Paul, "fought a good fight, I have finished my course, I have kept the faith" (Timothy II, Chapter 4, Verse 7). Stated another way, I will have finished this fight when I file the last pleading in this trilogy of lawsuits next week.

A downloadable copy of this final Petition for Certiorari is available free if you are curious.

Now, if only the Lord remembers that: "Henceforth there is laid up for me a crown of righteousness, which the Lord, the righteous judge, shall give me . . .". (Timothy II, Chapter 4, Verse 8). If he forgets, that would be O.K. too, for I know that I can look my ancestors in the eye when we meet as I have endeavored to transmit to the next generation those sacred rights to which we were all born and which I believe -- as detailed in the Petition -- have been lost. One of those Ancestors, George Mason (pictured above) said it best:

I charge [my sons] never to let the motives of private interest or ambition to influence them to betray, nor the terrors of poverty and disgrace, or the fear of danger or of death deter them from asserting the liberty of their country, and endeavoring to transmit to their posterity those sacred rights to which themselves were born.

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2 Years and Waiting -- Why Haven't They Ruled Yet?

As of today, I have been waiting for two (2) years for the Supreme Court of the United States to rule upon my petition for them to reconsider their decision to disqualify themselves in Case No.: 07-6522.

They can rule for me, they can rule against me, but can they refuse to rule at all without consequence?

Apparently, they can. Nice work if you can get it.

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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.

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Me vs. The Supremes – Part XII

In his sua sponte order of dismissal of my Third Lawsuit against the Supremes, Judge Leon stated: “The Constitution commits the issue of removal on impeachment of civil officers of the United States - including federal judges – to Congress. U.S. Const. art. I, §§ 2, 3. Therefore, the removal from office of the justices of the Supreme Court is a political question that is nonjusticiable by this Court. See: Nixon v. Unit ed States, 506 U.S. 224 (1993); Bergen v. Edenfield, 701 F.2d 906, 908 (11th Cir. 1983)("Congress has never given a district court the power in a civil action to enjoin an Article III judge from continuing to sit on the bench . . .").

In other words, only Congress could remove a federal judge from office, according to the learned Judge Leon. But a review of the authority for this ex cathedra pronouncement by Judge Leon reveals that no such authority exists and thus it was far from “patently obvious” that my Third Lawsuit could not prevail. Hence, a sua sponte dismissal was unauthorized. . . .

In his sua sponte order of dismissal, Judge Leon first cited Nixon v. United States, 506 U.S. 224 (1993). Nixon deemed a “political question” and hence non-justiciable the procedure required by the word “try” in Article I, § 3, cl. 6. Citing to Baker v. Carr, 369 U.S. 186 (1962), the Supreme Court found that “the word “try” in the Impeachment Clause does not provide an identifiable textual limit on the authority which is committed to the Senate.” This holding was inapposite here as I maintained that Congress is denied by the “textual limit” of the Constitution the power to remove a Justice for “misbehavior” – an issue never addressed by the Supreme Court – and thus it is not a “political question.”

Second, Judge Leon cited Bergen v. Edenfield, 701 F.2d 906, 908 (11th Cir. 1983). In Bergen, the 11th Circuit panel held the obvious: “The only mechanism for removal of a federal judge provided in the Constitution is the impeachment process. U.S. Const. art. II, Sec. 4.” However, citation to Bergen begged the question explicitly raised by me and ignored by Judge Leon who refused to hear any argument in derogation of its duties under Marbury vs. Madison to “say what the law is”: to wit, whether such alternative to impeachment removal mechanisms were identified and reserved by Article III and the Ninth and Tenth Amendments to the Constitution.

However, for Judge Leon to address these question would raise the specter of federal judges being held accountable by a jury or twelve, tried and true men and women. Such a fate nauseates federal judges who have come to recognize their power as well as their immunity from liability for their actions, as absolute.

Of course, I have taken Judge Leon’s sua sponte dismissal up on appeal, and that matter now pends in the inexorably slow process of federal appellate resolution – thus accomplishing what Judge Leon wanted all along – that my issue would never see the light of day.

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