July 19, 2015

Hon. Ted Cruz, Chairman

Subcommittee on Oversight, Agency Action,
Federal Rights and Federal Courts
224 Dirksen Senate Office Building
Washington, DC 20510
RE: Curbing Judicial Activism Without Amending the Constitution
Dear Chairman Cruz:
Even federal judges1 are advising us that the Judicial Conduct and Disability Act
is a spectacular failure. Judges like those of the Fifth Circuit, caught LYING to protect the reputation of their institution,2 cant be trusted to police themselves, as the
accumulated evidence proves beyond cavil.3 In turn, this sorry state of affairs raises
a profoundly embarrassing question:
Why cant we hold our judges to the same minimal standards of professional
competence as the Islamic Republic of Iran?4
EXECUTIVE SUMMARY

Under Article III, 1 of the Constitution, Congress has the authority to create a
separate court that hears claims that Article III judges have violated their good
behavior tenure.

To reflect separation-of-powers concerns, all trials should be via civil jury, with
jurors having the traditional authority to decide questions of both law and fact.5
1. This prevents judges from rewriting the law to protect colleagues.
2. This was the way good behavior tenure was enforced in England.

Advantages over the proposed Inspector General law:

1. The Inspector General law does nothing to address what everyone is actually
upset about: judges who openly flout and misrepresent precedent, fabricate
facts, write intellectually indefensible opinions, dont even read the opinions
they vote on, or otherwise act like tin-horn dictators.6
2. Whereas separation-of-powers concerns tie this Committees hands, there is
no conflict when decisions of this nature are left in the hands of the people.
3. This constitutional
constitutional remedy already exists
exists or, would exist, but for judijudicial intransigence.
intransigence
1

Unlike an impeachment,7 the proposed system protects the due process rights of
Article III judges.
1. As the standard of good behavior tenure is coterminous with the judges oath
of office,8 judges are fairly noticed as to what behavior violates the terms of
their sinecures.
2. Court decisions are subject to Supreme Court review, thereby preserving
judges procedural due process rights.9
DETAILED ANALYSIS

The major cause of the loss of public confidence in the American judiciary,
however, is the failure of judges to comply with established professional
norms, including rules of conduct specifically prescribed. In brief, it is the
norms
judges, both on and off the bench, that most concerns
unethical conduct of judges
the citizenry.
Judge Roger J. Miner (2d Cir.)10
A. The Judicial Conduct and Disability Act Was Sabotaged By the Judiciary.
As a general rule, whenever you put the mice in charge of the cheese, things tend
to turn out badly. This was the obvious conceptual flaw in the Judicial Conduct and
Disability Act: federal judges are incapable of policing themselves.11 Arguably, the
most egregious example is that of former Chief Judge Edward Nottingham of the
District of Colorado, who resigned his post after it came to light that he had been
indulging in weekly trysts with Elliot Spitzer-class courtesans.12 As it is self-evident
that he couldnt possibly have afforded such an indulgence on his federal judges
salary alone, and would not have been able to have prevented his financially-savvy
wife from noticing a drain on the familys finances, it became obvious that a federal
district court judge was taking bribes.
bribes 13 But those in power allowed him to avoid
prosecution, in much the same way that Judge Kents indiscretions were covered up
by the Fifth Circuit.14
The statutory language is reasonably specific. As Chief Judge Alex Kozinski of
the Ninth Circuit informs us, the initial iterations of the Act purported to enforce
the good behavior standard of Article III by removing judges who violated it.15 Congress eventually settled with conduct prejudicial to the "[e]ffective and expeditious
administration of the business of the courts language already found in section
332 of title 28 and is intended to include willful misconduct in office,
office willful and
persistent failure to perform duties of the office, habitual intemperance, and other
conduct prejudicial to the administration of justice that brings the judicial office
into disrepute.16 And as Judge Kozinski noted in his Real dissent, it is wrong and
highly abusive for a judge to exercise his power without a statement of reasons
for the decision [and] reliance on legal authority.17
2

Congresss big mistake was to let judges write their own rules. Pursuant to their
rulemaking authority, they declared that cognizable misconduct did not include an
allegation directly related to the merits of a decision or procedural ruling, further
adding that [a]n allegation that calls into question the correctness of a judge's ruling without more, is merits-related.18 Accordingly, Judge Real was not even
rebuked for his tyrannical because I said it ruling,19 despite the expressed intent
of Congress to the contrary.20 In the Islamic Republic of Iran, Judge Reals victims
would have an effective remedy at law.21 But not in America.22
The presumption that appellate review is sufficient to restrain abuses of office
by district judges is not supported by the evidence. Federal appellate courts have
been known to decide our appeals on the basis of one-page bench memos at a rate of
twenty-five cases per hour,23 resulting in a high error rate.24 And if the offender is
an appellate tribunal, any hope of correction on appeal is in vain, as Their Royal
Majesties at One First Street have decreed that they dont do error-correction.25
B. Creating an Inspector General Will NOT Solve The Real Problem.
Everyone agrees that our judicial system is in a shambles. Problem is, neither
additional financial disclosure requirements nor an Inspector General who answers
to the Chief Justice is going to do anything about what the citizenry is really upset
about: arrogant judges who view themselves as Platonic Guardians,26 legislating on
an ad hoc basis from the bench and literally rationing justice as they see fit.27 The
directly related to the merits loophole is large enough for Captain Sullenberger to
fly a 737 through it, and our Imperial Judiciary will continue to exploit it.
Simply put, the proposed Inspector General is a solution in search of a problem.
As long as judges have the power to define judicial misconduct out of existence, and
the only punishments available are impeachment and a harsh scolding, it is hard to
see how the American people will get enough value to justify the investment.
C.

Good Behavior
Beh avior Tenure: The Framers Antidote For Judicial Tyranny.

While no one favors a judiciary answerable to Congress, no one favors a judiciary

that is answerable to no one. The Framers solutionborrowed
from English law
solution
to this problem was to make judges answerable to the people they served, by giving
aggrieved litigants the power to remove them from office for cause.
1.

Historical Underpinnings of the Good Behavior Clause

For centuries, servants of the Crown were given freeholds in their office, subject
to the condition of good behavior.28 Thus, by making an official subject to removal
for violating it, it effectively defined the powers of an office. A quarter-millenium of
British legal precedent can be summarized in one phrase: If you didnt
didnt do your job,
29
you lost your job.
job
3

When their English forebears conditioned judicial sinecures on maintenance of

good behavior,30 they clearly intended to entrust subjects with this power. After all,
as Parliament could remove a judge from office for any reason or no reason at all,31
the protection of good behavior would otherwise have been illusory.
By the same token, by conditioning Article III sinecures on the maintenance of
good behavior, the Framers knew what they were doing. By adopting that term of
legal art, they incorporated the English definition and related common-law precedent.32 The elegance in their approach was in how it maintained the separation of
powers: Whereas Congress can only impeach Article III judges,33 the citizens power
to enforce good behavior tenure ensured that they remain answerable to the citizens
they served.
Aided by Scalian textual analysis,34 the historical evidence conclusively refutes
the conventional wisdom that the Good Behavior Clause was merely a clumsy crossreference to the Article II impeachment authority. Aside from the fact that the
Framers simply didnt DO clumsy, the Northwest Ordinance of 1787, 1 Stat. 51,
conditioned its judicial sinecures upon "good behaviour," in spite of the fact that the
Continental Congress did not possess the power of impeachment.35 Second, in a lecture comparing our Constitution to Britains, Justice James Wilsonwho served on
the five-man Committee of Detail which wrote Article III36stressed that the only
pertinent difference between our system and theirs was that, unlike Parliament,
Congress did not have a power of address.37 Finally, observing that many States
conditioned their judicial offices on good behavior, Alexander Hamilton noted in the
Federalist that "[t]he standard of good behavior for the continuance in office of the
judicial magistracy, is certainly one of the most valuable of the modern improvements in the practice of government."38 Given Chief Justice Marshalls admonition
that [i]t cannot be presumed that any clause in the constitution is intended to be
without effect,39 there can be no conceivable historical warrant for our judges selfserving conclusion that the Good Behavior Clause is mere window-dressing.
2.

The Power To Enforce Good Behavior Tenure Must Lie Somewhere, and
the Only Logical Somewhere Is With the People.

Justice Frankfurter reminds us that we should read the law with the saving
grace of common sense.40 Harvards legendary Raoul Berger adds, [w]hen an office
held during good behavior is terminated by the grantees misbehavior, there must
be an incident power to carry the law into execution if good behavior is not to be
an impotent formula.41 This power must lie somewhere, as [a] constitutional provision should not be construed so as to defeat its evident purpose, but rather so as to
give it effective operation and suppress the mischief at which it was aimed.42
We can say with confidence that this power was never entrusted to Congress, as
its authority to remove an official from office was expressly limited to impeachment
and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.43 As
4

the executive Power only extends to enforcement of the law, and the judicial Power
extends only to the trial of cases and controversies, by the process of elimination,
that power must rest with the people or more specifically, to citizens aggrieved by
that misbehavior, or not at all. As this interpretation of the Constitution is most
consistent with the British formulation of good behavior tenure, this is the one that
the Framers must have meant.
3.

There Was a Mechanism In Place For Enforcing Good Behavior Tenure

In 1789.

The process by which good behavior was enforced was spelled out in Blackstone.
Whereas good behavior tenure was technically enforceable by the sovereign, as this
power concerned only the interests of his subjects, and the King exercised it purely
in parens patriae, he was bound by law to allow use of it to any subject interested.
Blackstone elaborates:
WHERE the crown hath unadvisedly granted any thing by letters patent,
which ought not to be granted, or where the patentee hath done an act that
amounts to a forfeiture of the grant, the remedy to repeal the patent is by
writ of scire facias in chancery. This may be brought either on the part of
the king, in order to resume the thing granted; or, if the grant be injurious
to a subject, the king is bound of right to permit him (upon his petition) to
use his royal name for repealing the patent in a scire facias.44
In England, the subject simply filed a writ of scire facias in the appropriate court,
demanding that the public official be removed from office. A trial was conducted on
the merits before a civil jury, and the losing party was entitled to appropriate appellate remedies. And yes, it was even used against judges.45
In theory, this remedy already exists in our federal courts. But in practice, judges have consistently refused to yield even a scintilla of the power the judiciary has
wrongfully usurped by interpreting constitutional restraints on their power out
of existence.
existence 46 As such, any attempt to enforce this constitutional remedy for even
the most extreme acts of judicial lawlessness in a federal district court is futile.47
This is where Congress comes in.
4. All Congress Is Being Asked To Do Is Uphold the Constitution.
Congress has authority under Article III to create a separate court, with the sole
purpose of hearing claims that judges violated their good behavior tenure. Ideally,
these claims would be decided by a proper Seventh Amendment jury, which has the
power to decide both questions of fact and law, as was the case in 1791.48 In theory,
administration of the trial could be delegated to a special master, which should be a
trial attorney with decades of experience.49 This would insulate the proceeding from
5

what the Breyer Commission described as undue guild favoritism,50 by preventing

judges from rewriting the law for their benefit, as they have in the past.51
CONCLUSION

We should always start, when we read the Constitution, by reading the

Declaration [of Independence], because it gives us the reasons why the
structure of the Constitution was designed the way it was. And with the
Constitution, it was the structure of the government that was supposed
to protect our liberty. And what has happened through the years is that
the protections afforded by that structure have been dissipated.
Justice Clarence Thomas52
These protectionsincluding written judicial opinions with binding precedential
effect, mandatory Supreme Court review upon a writ of certiorari, remedies in tort
for willful violations of constitutional rights by public officials, and jury trialshave
all been relegated to historys dust-bin by our Imperial Judiciary. In two centuries,
in what the late Judge Bork accurately described as a judicial coup dtat,53 our
too-independent judiciary has interpreted our Constitutionone of mankinds truly
great achievementsout of existence,54 replacing King George with King Judge.55
As Abraham Lincoln intoned, No man is good enough to govern another man,
without the others consent,56 and the Constitution marks the limits of our consent.
When judges extinguish our rights by slamming the courthouse doors in our faces,57
they not only exceed their lawful authority, but literally void the Constitution.58
In closing, I emphasize that this constitutional remedy for judicial tyranny
already existsor
would exist, but for the intransigence of our out-of-control judiexists
ciary. "The judicial power to determine law is a power only to determine what the
law is, not to invent it,"59 and it is incumbent upon you to act to rescue the Framers
Constitution from the judocratic tyranny James Madison called slavery.60
We CAN hold our judges to the same standard of professional competence as the
Islamic Republic of Iran. And the Constitution, as properly interpreted, empowers
the citizenry to do so. But in the face of unconstrained judicial lawlessness, we need
a little help from you. I beseech you to consider this proposal.
Sincerely,
Kenneth L. Smith, J.D., M.S., C.P.A.,
23636 Genesee Village Rd.
Golden, CO 80401
Contact info: (303) 526-5451; 19ranger57@earthlink.net
6

FOOTNOTES AND APPENDIX

[As the Senate Judiciary Committee has yet to join the 21st centuryonly the Minority
Office has a proper e-mailI have sent a complete copy of this document, along with
an Appendix comprised of my complaint to the Fourth Circuit, to that Office. As individual Senators and Congresscritters only accept e-mails via cumbersome short forms,
this letter will be faxed and in some instances, without all of the footnotes.]

According to Senior Judge John L. Kane of the District of Colorado, the judicial self-discipline system "is a 'kiss
your sister' operation that hasn't worked and won't as long as judges are covering one another's butts. The present
system is ineffectual and I think that could be demonstrated by the very sorry record." Ronald D. Rotunda, The
Courts Need This Watchdog, Wash. Post, Dec. 21, 2006. In the misconduct complaint involving Judge Manuel
Real, Judge Alex Kozinski of the Ninth Circuit adds:
Disciplining our colleagues is a delicate and uncomfortable task, not merely because those accused of misconduct are often men and women we know and admire. It is also uncomfortable because we tend to empathize with
the accused, whose conduct might not be all that different from what we have done or been tempted to do
in a moment of weakness or thoughtlessness. And, of course, there is the nettlesome prospect of having to confront judges we've condemned when we see them at a judicial conference, committee meeting, judicial education
program or some such event.
Pleasant or not, it's a responsibility we accept when we become members of the Judicial Council, and we must
discharge it fully and fairly, without favor or rancor. If we don't live up to this responsibility, we may find
that Congress which does keep an eye on these matters, see, e.g., Operations of Fed. Judicial Misconduct
Statutes: Hearing Before the Subcomm. on Courts, the Internet, and Intellectual Prop. of the House Comm. on
the Judiciary, 107th Cong. (2001); Report of the Nat'l Comm'n on Judicial Discipline and Removal (1993)
will have given the job to somebody else, materially weakening the independence of the federal judiciary.
In re Complaint of Judicial Misconduct, 425 F.3d 1179, 1183 (9th Cir. 2005) (Kozinski, J., dissenting). Needless to
say, it is high time that the job be given to whom the Framers intendedthe people, in civil juries assembled ad hoc
to discharge that solemn duty.
2

In connecting the dots regarding disgraced United States District Judge Samuel B. Kent, Galveston Daily News
editor Heber Taylor writes:
In 2001, there was grumbling about favoritism in Kents court on Galveston Island. The Southern District
removed 85 cases from the court. The attorney on all 85 was Richard Melancon, Kents close friend and the
host of the reception for the judges wedding.
The judicial system looked into it and moved the cases. The judges in charge told the public the reason
was a heavy caseload.
Last week, after Kent was sentenced to prison for lying about the assaults, the House Judiciary Committee
agreed to conduct an inquiry to determine whether he should be impeached.
That response is inadequate because its incomplete. Whats missing is an inquiry into the way the judicial
system itself responded to complaints.
Before the judicial council took any significant action against Kentaction, say, that would have cost him a
single paycheckThe Daily News found that 671 complaints had been filed against judges in the 5th Circuit
since 2000. Not one had resulted in formal discipline.
We wonder whether members of Congress have faith in that system. We wonder how they could possibly ask
usthe people who are served by this courtto trust it.

Heber Taylor, Judicial Discipline Needs a Full Probe, Galveston County Daily News (TX), May 15, 2009 (emphasis
added).
3

As the Houston Chronicle reported, judges only sanctioned their colleagues seven times in ~6,000 complaintsa
lousy batting average in any league. Lise Olsen, Secrecy May Help Protect Misbehaving Judges, Houston Chronicle,
Dec. 13, 2009, at A-1. But as one who has actually filed complaints with foreknowledge of their futility, I can demonstrate that the reason for this sorry record is Cardinal Law-class nefarious. And in aid of this demonstration, I turn
again to Judge Kozinski:
The so-called hearing on the second of these motions gives a pretty good flavor of the judge's attitude in this
matter. The motion (and an unrelated motion) were argued together on June 18, 2001 after Deborah Canter
had occupied the property for some 15 months past the eviction judgment. Deborah was present (apparently pro
se), but said nothing of substance. After counsel for the Trust soliloquized for about a page of transcript, we find
the following unilluminating exchange:
THE COURT: Defendants' motion to dismiss is denied, and the motion for lifting of the stay is denied
I'm sorry. The motion to dismiss is granted with ten days to amend.
MR. KATZ: And the motion to lift the stay is denied?
THE COURT: Denied; that's right.
MR. KATZ: May I ask the reasons, your Honor?
THE COURT: Just because I said it, Counsel.
I could stop right here and have no trouble concluding that the judge committed misconduct. It is wrong and
highly abusive for a judge to exercise his power without the normal procedures and trappings of the
adversary system a motion, an opportunity for the other side to respond, a statement of reasons for the
decision, reliance on legal authority. These niceties of orderly procedure are not designed merely to ensure
fairness to the litigants and a correct application of the law, though they surely serve those purposes as well.
More fundamentally, they lend legitimacy to the judicial process by ensuring that judicial action is and is
seen to be based on law, not the judge's caprice. The district judge surely had the power to enjoin enforcement of the state-court eviction judgment once he assumed jurisdiction over the bankruptcy case, but he could
legitimately exercise that power only if he had sufficient legal cause to do so. Here, the judge gave no indication
of why he did what he did, and stonewalled all the Trust's efforts to find out.
Nor is there anything in the record that would suggest a legal basis for the judge's action.
In re Complaint of Judicial Misconduct, 425 F.3d at 1184-85 (Kozinski, J, dissenting; emphasis added).
Most of us operate under the illusion that the judicial power is the power to apply the law to the facts of the case,
and that due process demands that the lawgiver present a justification in both fact and law for the decision rendered.
And as everyone knows, In that light, consider the action by a judge (to call it a judicial act would defile the term)
that prompted me to file a complaint in the Fourth Circuit:
THIS MATTER comes before the Court on Plaintiffs Amended Complaint, seeking a declaratory judgment
that the Defendants, all members of the Supreme Court of the United States, use of discretion in reviewing
petitions is a violation of the First and Fifth Amendment of the United States Constitution, as well as injunctive
relief requiring Defendants to review all of Plaintiffs petitions, or, in the alternative, a declaration that the Bill
of Rights is null and void. It appearing to the Court that the Plaintiff[s] Complaint states no claim on which
relief can be granted and this lawsuit is frivolous pursuant to 28 U.S.C. 1915(e)(2)(B)(i), it is hereby
ORDERED that this case is DISMISSED.
Order, Smith v. Kagan, No. 1:14-cv-1242 (E.D. Va. Jan. 27, 2015) (emphasis added).
First and foremost, Section 1915 is a provision that, by its terms, only applies to prisoners in correctional institutions proceeding in forma pauperis. If the judge had even bothered to READ the first few pages of my complaint
to be blunt, that is no longer a givenhe would have learned that it was not a prisoner complaint. Moreover, even
8

under Section 1915, as long as there is an arguable basis in law and fact for my position, Neitzke v. Williams, 490
U.S. 319, 325 (1989), a summary dismissal is impermissible. Even if that court were to dismiss these claims under
Fed. R. Civ. P. 12(b)(6), the Fifth Amendment Due Process Clause requires a legally coherent written opinion. See
generally, Mathews v. Eldridge, 424 U.S. 319 (1976) (three-factor test).
In Judge Kozinskis learned view, [j]udicial action taken without any arguable legal basis is far worse than
simple error or abuse of discretion; it's an abuse of judicial power that is "prejudicial to the effective and expeditious administration of the business of the courts." In re Complaint of Judicial Misconduct, 425 F.3d at 1185 (Kozinski, J, dissenting; emphasis added). I also got the Chief Judge of the Tenth Circuit to agree with my supposition
that a legal ruling done with improper motive can constitute misconduct. In re Charge of Judicial Misconduct, No.
2006-10-372-40 (10th Cir. Judicial Council Jan. 4, 2007) at 2. And Judicial Council precedent unequivocally states
that
a cognizable misconduct complaint based on allegations of a judge not following prevailing law or the
directions of a court of appeals in particular cases must identify clear and convincing evidence of willfulness, that is, clear and convincing evidence of a judge's arbitrary and intentional departure from prevailing law based on his or her disagreement with, or willful indifference to, that law.
In re Judicial Conduct and Disability, 517 F. 3d 558, 562 (Jud. Conf. 2008).
A clearer case of judicial misconduct, you could not find. Even if Judge Hilton made a simple mistake in issuing
the order in question, he had a full and fair opportunity to correct it upon my motion for reconsideration. But he did
not, which constitutes prima facie evidence of willful indifference. But as the typical Article III judge would rather
sodomize his mothers corpse than sanction a colleague, Judge Hiltons actions were deemed to be directly related
to the merits of a decision or procedural ruling and the complaint, dismissed on those grounds.
The lesson is pellucid, and should be heeded by this august body. Directly related to the merits of a decision or
procedural ruling is almost infinitely elastic to the point where if a judge decided his cases by consulting a Ouija
board, it would fit under that rubric. I invited the Fourth Circuit Judicial Council to provide a bright line reconciling
Judicial Council precedent and the directly related safe harbor, and they declined.
4

In Iran, Qadi (judges) are bound to endeavor to judge each case on the basis of the codified law. Qanuni Assassi
Jumhurii Islamai Iran [The Constitution of the Islamic Republic of Iran] 1382 [1980], art. 167 (trans unknown),
available at http://www.iranonline.com/iran/iran-info/government/constitution-11.html. All verdicts must be well
reasoned out and documented with reference to the articles and principles of the law in accordance with which they
are delivered. Id., art. 166. Qadi are accountable to Irans Supreme Court, which was formed for the purpose of
supervising the correct implementation of the laws by the courts [and] ensuring uniformity of judicial procedure.
Id., art. 161. And Qadi are actually accountable to litigants: Whenever an individual suffers moral or material loss
as the result of a default or error of the judge with respect to the subject matter of a case or the verdict delivered, or
the application of a rule in a particular case, the defaulting judge must stand surety for the reparation of that loss.
Id., art. 171. And this inherently just rule can be traced to ancient Babylon. Codex Hammurabi, art V (1760 BCE)
(Leonard W. King tr.), at http://en.wikisource.org/wiki/Codex_Hammurabi_(King_translation).
Irans constitutionally-mandated minimum standards for judicial performance are also regarded as best practices
in our own courts. As the Wisconsin Supreme Court observed recently:
We believe that a hallmark of our courts in Anglo-American jurisprudence is that a court explains its decision.
A court should be transparent and accountable by giving reasons for its decisions, reasons that can be evaluated
and used to inform future decisions by the litigants, reviewing courts, and the public.
An unreasoned decision has very little claim to acceptance by the defeated party, and is difficult or impossible to
accept as an act reflecting systematic application of legal principles. Moreover, the necessity of stating reasons
not infrequently changes the results by forcing the judges to come to grips with nettlesome facts or issues which
their normal instincts would otherwise cause them to avoid.
Wisconsin v. Allen, 778 N.W.2d 863, 877-78 (2010) (per curiam; internal quotation omitted). Or, to put it another
way, just about anywhere on the planet, judging is like going to the bathroom: the job aint over til the paperwork is
done. And as Justice Breyer points out, a half-assed wipe job will not do:
9

Judges do not simply announce a legal conclusion. They reason their way to that conclusion in an opinion
written for all to see. The obligation to provide legally defensible reasoning in a publicly accessible format
prevents a judge from escaping accountability. Indeed, a good judicial opinion is transparent and informative. It shows that the decision is principled and reasoned. The strength of this reasoning matters.
Stephen Breyer, Making Our Democracy Work: A Judges View 83 (2010) (emphasis added).
5

This was how American jury trials were conducted in 1791, and for centuries in England before that. See e.g.,
Georgia v. Brailsford, 3 U.S. 1, 4 (1793) (jury instructions of Jay., C.J.) (acknowledging this fact).

As a seriatim list of judicial fouls would make War and Peace seem like a novella in comparison, the remarks of
Judge Kozinski should serve as an adequate summation:
Judges know very well how to read the Constitution broadly when they are sympathetic to the right being
asserted. When a particular right comports especially well with our notions of good social policy, we build
magnificent legal edifices on elliptical constitutional phrasesor even the white spaces between lines of constitutional text. But, as the panel amply demonstrates, when we're none too keen on a particular constitutional
guarantee, we can be equally ingenious in burying language that is incontrovertibly there.
It is wrong to use some constitutional provisions as springboards for major social change while treating others
like senile relatives to be cooped up in a nursing home until they quit annoying us. As guardians of the Constitution, we must be consistent in interpreting its provisions. If we adopt a jurisprudence sympathetic to individual
rights, we must give broad compass to all constitutional provisions that protect individuals from tyranny. If we
take a more statist approach, we must give all such provisions narrow scope. Expanding some to gargantuan
proportions while discarding others like a crumpled gum wrapper is not faithfully applying the Constitution; it's
using our power as federal judges to constitutionalize our personal preferences.

Silveira v. Lockyer, 328 F.3d 567, 569 (9th Cir. 2003) (Kozinski, J., dissenting from den. of hearing en banc) (citations omitted; emphasis added); accord, e.g., Robert H. Bork, Our Judicial Oligarchy, 67 First Things 21, 24 (Nov.
1996) (judges as "outlaws"); Richard S. Arnold, Unpublished Opinions: A Comment, 1 J. of App. Prac. & Process
219, 222 (1999), et al., ad nauseum.
"Courts and judges always lie." Martin Shapiro, Judges as Liars, 17 Harv. J.L. & Pub. Poly 155,155 (1994). A
chorus of academicians and judges that could fill a small auditorium have not only told us this, but have told us how
they do it. Judge Posner writes that they "are constantly digging for quotations from and citations to previous cases
to create a sense of inevitability about positions that they are in fact adopting on grounds other than deference to
precedent,"a process he calls "fig-leafing." Richard A. Posner, How Judges Think 144, 350 (Harv. U. Pr. 2008).
Again, a seriatim list of concurrences would fill a Brandeis brief. See e.g., Monroe Freedman, Speech (to Seventh
Annual Judicial Conference of the U.S. Court of Appeals for the Federal Circuit) (May 24, 1989), reprinted in 128
F.R.D. 409, 439; Maura D. Corrigan (then-Chief Justice, Michigan Supreme Court) and J. Michael Thomas, "DiceLoading" Rules of Statutory Interpretation, 57 N.Y.U. Ann. Survey of Amer. Law 231 (2003), Patricia M. Wald,
The Rhetoric Of Results and the Results of Rhetoric: Judicial Writings, 62 U. Chi. L. Rev. 1371, 1374 (1995) (Wald
is a former Chief Justice of the D.C. Circuit).
When judges cook the books like Emeril on crystal meth, the stench is unmistakable. As Professor Llewellyn
writes, their "manhandling" of the facts and precedent "leaves the particular point moderately clear: the court has
wanted [the end result] badly enough to lie to get it." Karl N. Llewellyn, The Common Law Tradition: Deciding
Appeals 133, 135 (1960). As Senior Judge Richard Kopf of the District of Nebraska has lamented on his blog, his
"cynicism about the Supreme Court had reached the status of a malignancy," Richard Kopf, Who me?, Hercules and
the Umpire (blog), Jun. 6, 2014, http://herculesandtheumpire.com/2014/06/, and Senior Judge Silberman of the D.C.
Circuit confessed that he is in "despair" over their scandalous performance. Benjamin Wittes, "Without Precedent,"
296-2 Atlantic Monthly 39 (Sept. 2005). And every court is guilty. Riggs v. West Virginia University Hospitals,
Inc., 656 S.E.2d 91, 102 (W.Va. 2007) (Starcher, J., dissenting) ("I have read, and re-read, and re-re-read, the majoritys opinion. I dont know what was in the Kool-Aid they were drinking, but I believe that the opinion is one of the
most factually misleading and legally pernicious cases to be produced by this Court.").
7

Impeachment is a non-justiciable political question. Nixon v. United States, 506 U.S. 224 (1993). As an Article III
sinecure creates a property interest in continued employment, see Board of Regents v. Roth, 408 U.S. 564 (1972) (re:
10

tenure rights), due process must be afforded to the party in the dock.
8

The judges oath of office provides, in pertinent part, that they will administer justice without respect to persons,
and do equal right to the poor and to the rich, and faithfully and impartially discharge and perform all the duties
incumbent upon [them]. 8 U.S.C. 453. Blackstone informs us that "oppression and tyrannical partiality was a
ground for removing a judge, encompassing the duty to administer justice evenly. Coke adds three more grounds for
the forfeiture of good behavior tenure: abuse of office, nonuse of office, and the willful refusal to exercise an office.
This translates to an obligation to discharge all of a judges constitutionally assigned duties. As every judge has to
recite this oath of office, judges are plainly on notice as to what constitutes a violation of their tenure.

What no one wants and least of all, me is for judges to fear that they will lose their position for simply getting
a decision wrong. I share Judge Kozinskis view that it is easy to tell the difference between an innocent mistake and
willful and flagrant acts of judicial misconduct, In re Complaint of Judicial Misconduct, 425 F.3d at 1185 (Kozinski,
J., dissenting), and trust that the average juror would be able to, as well. However, this body could promulgate laws
and regulations on an as-needed basis to minimize confusion and provide guidance. The IRS gives guidance to tax
practitioners as to appropriate standards and practices; Circular 230 could serve as a model for a system for judges.

A paradigmatic example of this is the same-sex marriage cases. It can be arguedand not without causethat the
Framers would never have agreed to a Constitution that precipitated that outcome. That having been said, judges are
to interpret the Constitution we have, as opposed to the one they might prefer, see e.g., Michigan v. Bryant, 562 U.S.
___, 131 S. Ct. 1143, 1176 (Scalia, J., dissenting), and judges have made a constitutionally defensible argument that
the right to contract is fundamental and that marriage is a contract, and the States can only prevent you from entering
into a contract if they can show that it impairs a compelling State interest. Much as judges need to have the modesty
to persist when it produces results that go against [their] policy preferences, id., the citizenry must have it, as well. A
statutory definition of good behavior would go a long way toward preventing unnecessary litigation.
10

Roger J. Miner, Judicial Ethics In the Twenty-First Century: Tracing the Trends, 32 Hofstra L. Rev. 1107, 1108
(2004).

11

Quantitatively, this is proven conclusively at n. 3, supra, and at least to Chairman Grassley and former Chairman
Sensenbrenner, this isnt exactly a news flash. Congressman Sensenbrenner has also filed a misconduct complaint
against a judge, and decried its subsequent dismissal by Judge Posner as a whitewash. F. James Sensenbrenner
(Chairman, House Judiciary Committee), Remarks Before the U.S. Judicial Conference Regarding Congressional
Oversight Responsibility of the Judiciary (Mar. 16, 2004), reprinted at 150 Cong. Rec. E426 (Mar. 23, 2004).
This is not a knock on the judiciary so much as it is a trenchant commentary on human nature. Ever since the day
of the Roman empire, it has been a maxim of law that nemo iudex in sua causa (no one should be a judge in his own
cause, E.g., Thomas Hobbes, Leviathan 172 (A.R. Waller ed., 1904) (1651), because his interest would certainly
bias his judgment, and, not improbably, corrupt his integrity. The Federalist # 10 at 124 (Alexander Hamilton). If
Catholic priests could not be trusted to police themselvesand they cant, A History of Secrecy, Coverups in Boston
Archdiocese, Boston Globe, Jan. 6, 2002it is self-evident that federal judges cannot.
12

Suffice it to say that 2008 was not a good year for Nottingham. The year before, his wife found out that he blew
$3,000 in a paroxysm of drunken debauchery at the Diamond Cabaret gentlemens club that he claims that he didnt
even remember, Felisa Cardona, Feds Grill Nacchio Judge's Ex-Wife, Denver Post, Aug. 11, 2007 -- lending a new
meaning to the phrase, sober as a judge. Then, he was identified as a frequent patron of an exclusive prostitution
ring, enjoying $1,000+ per night sojourns on a weekly basis with top-drawer call girls for the better part of a decade.
Deborah Sherman and Nicole Vap, Chief Federal Judge Investigated For Alleged Involvement with Prostitutes,
9News.com, Mar. 7, 2008 (the visits were weekly, and the girls would always leave with $300 or $400 in cash per
visit); Sara Burnett, Nottingham a No-Show Today After Report of Resignation, Rocky Mountain News, Oct. 16,
2008 (another girl had sex with Nottingham once a week from February 2003 through November 2004, even though
he married third wife Marcie Jaeger on Valentines Day, 2004. Amy Herdy, et al., FBI Questions Ex-Wife of Federal Chief Judge, 9News.com, 2007 (exact date unavailable). Predictably, the escort services records were stolen
some time later. Michael Roberts, Scottie Ewing-Michael Hancock link, election day break-in & the swing king's
tangled past, Westword, Jun. 8, 2011, http://www.westword.com/news/scottie-ewing-michael-hancock-link-electionday-break-in-and-the-swing-kings-tangled-past-5850963 (reportedly implicating Denver mayor Michael Hancock).

11

The patronage of high-end prostitutes is an expensive hobby: At this price level, the ladies offer what they call the
"girlfriend experience" -- where they play the role of girlfriend and confidante. Alex Johnson, A Consumer Guide to
Prostitutes Is a Click Away, MSNBC.com (Jan. 20, 2006), at http://www.msnbc.msn.com/id/10879309/ ("The combination -- a romantic dinner date followed by uninhibited sex -- is called the "girlfriend experience," or GFE").
Understandably, encounters of this nature typically last a minimum of 2-3 hours; the rate for outcall services in Denver is about $300 an hour. Sara Burnett, Police Bust Denver Escort Business, Rocky Mountain News, Feb. 7, 2008.
13

According to financial disclosure reports for the years 2003-07 obtained from Judicial Watch and retained by the
author, Judge Nottingham had no material source of above-board income outside of his judicial salary. Materially
false statements can expose the filer to felony prosecution, 18 U.S.C, 1001(a); United States Department of Justice,
Criminal Resource Manual 902 (1997) unless of course, your name is Clarence Thomas.[How was he supposed
to understand filing instructions? The man is only one of the nine most brilliant legal minds in the courts. The
Colbert Report (Comedy Central television broadcast Feb. 17, 2011) (transcribed by author, emphasis added).]
Simple math takes care of the rest. To hire courtesans on a weekly basis would cost somewhere in the neighborhood of $60,000 a year. Even a cursory review of his federally-mandated Financial Disclosure Reports reveals that
he did not have either the requisite accumulated savings or outside income to afford such extravagant indulgences -especially, when you consider that wife Jaeger had full access to the familys finances and could fully account for his
legitimate sources of income. See, Felisa Cardona, Feds Grill Nacchio Judge's Ex-Wife, Denver Post, Aug. 11, 2007
(which is how the $3,000 bill for a nights worth of debauchery at the Diamond Cabaret was discovered). By process
of elimination, the only possible source of that kind of income in his case is illicit bribes.
14

Amazingly, Nottingham is still practicing law in Denver. http://www.nottinghamlaw-mediation.com/CurriculumVitae/Edward-Nottingham.shtml.

15

In re Complaint of Judicial Misconduct, 570 F.3d 1144, 1146-48 (9th Cir. 2009) (discussion of Tydings and NunnDeConcini bills).

16

Id. at 1149 (quoting S.Rep. No. 362, 96th Cong., 1st Sess. 8 (1979); emphasis added).

17

In re Complaint of Judicial Misconduct, 425 F.3d at 1185 (Kozinski, J, dissenting).

18

Judicial Conference of the United States, Rules For Judicial-Conduct and Judicial-Disability Proceedings, art. I,
3(h) (adopted Mar. 11, 2008).
19

In re Complaint of Judicial Misconduct, 425 F.3d 1179 (9th Cir. 2005).

20

The author had much the same experience. See Appendix A.

21

The Canter case (subject of the Real misconduct complaint) was a bankruptcy matter, wherein the comely Deborah Canter was allowed to live in plaintiffs property on a rent-free basis via judicial fiat. In re Complaint of Judicial
Misconduct, 425 F.3d at 1180, 1184which, of course, is a taking of an interest in property.
As Islam recognizes and upholds the individual's right to private ownership of propertyMuhammed said that
he who dies defending his property was like a martyr, 1 Kuwait Land Ownership and Agriculture Laws Handbook
37 (Intl Bus. Publications, 2011)it is unsurprising that Irans Constitution would include strong provisions protecting private property rights. To wit, it provides that [e]veryone is the owner of the fruits of his legitimate business and labor, Iran Const. art. 46, and that [p]rivate ownership, legitimately acquired, is to be respected, Id., art.
47, and as noted earlier, Judge Real would be personally liable to his victims in tort, with the State serving as surety
if he could not make them whole. Id., art. 171.
As Islam takes a dim view of the excesses of capitalism, see id., art. 49, not all of the property rights protected by
law in Emperor John of Robertss America (a mere king is still accountable for his actions under law) would necessarily translate.
22

In America, injuries inflicted by our judiciary are generally absque damnum injuria, even though there is no sound
legal basis for the practice; domestic law in the area of civil forfeiture and bail is so absurd that it is legitimate fodder
for comedians like Comedy Central alum John Oliver. See https://www.youtube.com/watch?v=3kEpZWGgJks and
12

https://www.youtube.com/watch?v=IS5mwymTIJU.
23

This fact is confessed by the judges themselves. Perfunctory Justice; Overloaded Federal Judges Increasingly Are
Resorting to One-Word Rulings, Des Moines Register, Mar. 26, 1999, at 12 (fifty appeals decided in two hours, per
the late Judge Richard Arnold), Alex Kozinski, Letter (to Judge Samuel A. Alito, Jr.), Jan. 16, 2004 at 5 (150 rulings
made in a two-day session). And despite taking solemn oaths to administer justice without respect to persons, and
do equal right to the poor and to the rich, 28 U.S.C. 453, they routinely lavish attention on the appeals of the rich
and powerful, e.g., Marshall v. Marshall, 547 U.S. 293 (2006) (re: Anna Nicole Smith), and corporate titans, e.g.,
United States v. Nacchio, 519 F.3d 1140 (10th Cir. 2008) (former Qwest chairman), while ignoring the cries of hoi
polloi. As Reynolds and Richman observe,
[T]he courts have abandoned the notion of one appellate method for all cases and all litigants. The significant cases, those brought by wealthy, powerful, or institutional litigantsreceive the traditional approach
model. The routine, trivial casesusually the ones brought by poorer, weaker litigantsare relegated to twotrack appellate justice. For these cases (about half the total) the circuit courts have become certiorari courts,
rather than courts of mandatory, appellate jurisdiction that Congress intended.

William M. Reynolds & William L. Richman, Elitism, Expediency, and the New Certiorari: Requiem for the
Learned Hand Tradition, 81 Cornell L. Rev. 273, 275 (1995-96) (emphasis added). Professor Pether adds:
Although litigants have appeals as of right to the federal courts of appeals, what happens in a wrongly or
sloppily or unsafely or arbitrarily decided case is effectively a certiorari decision masquerading as an
appeal as of right based on the applicable standard of review. Many of these cases cluster in areas where deepseated sociolegal problems produce high rates of appeals, where the government is the target of the lawsuit,
and the paradigmatic governmental response is to jurisdiction strip [to abuse] disciplinary mechanisms to encourage [judges] to decide against litigants, and to impose penalties that are designed to discourage appeals.
Penelope J. Pether, Constitutional Solipsism: Toward a Thick Doctrine of Article III Duty; or Why the Federal Circuits Nonprecedential Status Rules are (Profoundly) Unconstitutional, 17 W.&M. Bill Rts. J. 955, 977 (2009).
Judge Posner observes that for everybody in the judiciary, theres probably a high error rate. Joel Cohen, An
interview with Judge Richard A. Posner, A.B.A. J. (Jul. 1, 2014), and in many cases, the errors are so obvious that
they are jaw-dropping. Everyone who made it through the first year of law school knows that a court without jurisdiction cannot decide a case on the merits, Ex parte McCardle, 74 U.S. 506, 514 (1869), which is why former Judge
Michael McConnells dismissal of a case for lack of jurisdiction was dismissed with prejudice. Harrington v. Wilson,
No. 06-1418 (10th Cir. Jun. 7. 2007) (withdrawn). McConnell, who taught law at Harvard, Stanford, and Utah while
purportedly sitting on that Court, Mirela Turc, Judge Michael McConnell Speaks About the Ninth Amendment, The
Observer (Case West. U.), Oct. 31, 2008 (bio), really should have known better, and if he had bothered to READ
the opinion he delivered, he should have been able to correct it.
So spake the Fiend, and with necessity, The Tyrants plea, excused his devilish deeds. John Milton, Paradise
Lost, Vol. 4, ln. 393-94 (1667). Everyone knows that the vast bulk of the federal appellate courts output is over-ripe
garbage, including most notably, the judges themselves. Justice Kennedy is reported to have responded angrily to a
vigorous critic of institutionalized nonpublication: If you guys want us to do it right, wed need 1,000 more judges.
Frank J. Murray, Justices to Review Access to Opinions, Wash. Times, Oct. 27, 2000, at A8. And the problem is?
Yes, Justice Kennedy, we actually DO expect you to do it right in EVERY case.
24

While as Judge Posner observes, for everybody in the judiciary, theres probably a high error rate, Cohen, supra
n. 23, it is impossible to say for certain as to how high it is. Back in the day when federal appellate courts employed
the Learned Hand model of appellate review (judges actually reading the briefs, holding a hearing, and writing their
own opinions), the reversal rate was almost 30% (in 1945, there was a reversal rate of 27.9 percent, see Dir. of the
Admin. Ofc. of U.S. Cts., Ann. Rept. 70 tbl.B1 (1945)), but in 2005, that percentage had fallen to 10.2. See Admin
Ofc. Of U.S. Cts., Federal Judicial Caseload Statistics 29 tbl.B-5 (2005). Assuming that federal district judges have
always been of a uniform caliber, it a reasonable first approximation that roughly 60% of reversible error is NOT
reversed by modern federal appellate courts. Anecdotal support for this stark assessment is supplied by federal
district judges themselves. E.g., Mark W. Bennett (District Judge, N. Dist. of Iowa), Essay: From the 'No Spittin',
13

No Cussin' and No Summary Judgment' Days of Employment Discrimination Litigation to the 'Defendant's Summary
Judgment Affirmed Without Comment' Days: One Judge's Four-Decade Perspective, 57 N.Y.L. Sch. L. Rev. 685,
688 & fn. 11 (2012-13) ([I]n in my haste to have a current docket, I was way too aggressive and overused summary
judgment. Unfortunately, not one of those decisions was overturned on appeal.).
It is harder to assess the decline in performance of the federal district courts, but when sitting federal judges tell
you that they dont even bother reading your briefs, Richard G. Kopf, Top ten legal writing hints when the audience
is a cranky federal trial judge, Hercules and the Umpire (blog), Jun. 20, 2013, at http://herculesandtheumpire.com/2013/06/20/top-ten-legal-writing-hints-when-the-audience-is-a-cranky-federal-trial-judge/ (Judge Kopf is a Senior
Judge for the District of Nebraska who, evidently, would rather blog and write law review articles, e.g., Richard G.
Kopf, Federal Supervised Release and Actuarial Data (including Age, Race, and Gender): The Camels Nose and
the Use of Actuarial Data at Sentencing, 27-4, Fed. Sentencing Rptr. 207 (April 2015)), they really cant be doing
the highest quality of work.
Judge Bennett is one of the most virulent critics of summary judgment, accusing his colleagues of using motions
to dismiss and motions for summary judgment as nuclear weapons to blast through their docket. Bennett, Essay at
707. In my view, trial and appellate judges engage in the daily ritual of docket control by uttering too frequently the
incantation, We find no material question of fact. Mark W. Bennett, Judges Views on Vanishing Civil Trials, 88
Judicature 306, 307 (2005). Apart from the flagrant unconstitutionality of the practice, Suja A. Thomas, Why Summary Judgment Is Unconstitutional, 93 Va. L. Rev. 139 (2007); especially where a jury trial is demanded, see Baltimore & Carolina Line, Inc. v. Redman, 295 U.S. 654, 657 (1935) (The right to trial by jury that is preserved by the
Seventh Amendment, is "the right which existed under the English common law when the Amendment was adopted,"
and summary judgment did not exist at common law in 1791), this device is used to force settlements and even veto
laws the judges do not like. In Bennetts learned assessment, [t]he federal reporters are filled with hundredsif not
thousandsof employment discrimination cases where, despite the fact that these principles were the existing law of
the circuit, courts swiftly granted summary judgment. Bennett, Essay at 688. If Judge Bennett is correct, 100% of
these casesand almost certainly, many moreshould have been reversed at the appellate level.
25

Sup. Ct. R. 10.18; see also, e.g., Stephen G. Breyer, Reflections on the Role of Appellate Courts: A View from the
Supreme Court, 8 J. App. Prac. & Process 91, 92 (2006).
26

Sam Stein, Kagan: In Bush v. Gore, Court Was Affected By Politics and Policy, Huffington Post, May 19, 2010
(reporting on Elena Kagans "Platonic Guardians" remark in Princeton commencement speech) http://www.huffingtonpost.com/2010/05/19/kagan-in-bush-v-gore-cour_n_581511.html.
27

Retired District Judge Nancy Gertner recently confessed that federal district judges are literally TRAINED on how
to dispose of pro se civil rights claims. Nancy Gertner (blog reply), Civil jury trials, summary judgment, employment
cases and the Northern District of Georgia studypreliminary observations, Hercules and the Umpire (blog of Senior
Judge Richard Kopf, District of Nebraska), Oct. 22, 2013, at http://herculesandtheumpire.com/2013/10/22/civil-jurytrials-summary-judgment (When I was trained as a judge the trainer began the session on civil rights, "Heres how
you get rid of these cases. ").
A particularly florid example of how this happens in practice came to light in Erickson v. Pardus, 551 U.S. 93
(2007) (per curiam), where the Supreme Court read the courts of the Tenth Circuit the riot act for its shoddy procedures. Subsequent examination of the practices of Judge Robert Blackburn of the District of Colorado reveal a consistent pattern. Pro se cases are invariably delegated to a magistrate, with an apparent instruction to get rid of the
case. The magistrate hands his opinion to Judge Blackburn, who summarily affirms the decision in a boiler-plate
opinion. One searches in vain for any evidence that he has actually performed the searching review he is obliged to
under Rule 72, as his decisions are bereft of factual findings, and contain this stock paragraph:
As required by 28 U.S.C. 636(b), I have reviewed de novo all portions of the recommendation to which
objections have been filed, and have considered carefully the recommendation, objections, and applicable
caselaw. In addition, because plaintiff is proceeding pro se, I have construed his pleadings more liberally and
held them to a less stringent standard than formal pleadings drafted by lawyers. See Hall v. Bellmon, 935 F.2d
1106, 1110 (10th Cir. 1991). The recommendation is detailed and well-reasoned. Plaintiff's objections are
imponderous and without merit. Therefore, I find and conclude that the arguments advanced, authorities cited,
and findings of fact, conclusions of law, and recommendation proposed by the magistrate judge should be
14

approved and adopted.

Order Overruling Obj. To and Adopting Recommendations, Hale v. Ashcroft, No. 06-cv-00541-REB-KLM,
2008.DCO.004359, 9 (D.Colo. Sept. 24, 2008) (Versuslaw) (emphasis added).
Even if Blackburns brusque treatment of white supremacist Matthew Hale could be attributed to the general
belief that he is the scum of the earth and doesnt deserve better, his dismissive treatment of veteran attorney John
Cogswell borders on the mystifying. Cogswell, a graduate of Yale and Georgetown School of Law with over forty
years experience at bar, advanced the novel contention that the Senates failure to approve an adequate number of
judges in the District of Colorado violated his right of access to the courts, with the clarity and focus you would
expect from a person with that level of education and experience. Nonetheless, Blackburn declared:
Even though plaintiff is a licensed attorney, in an abundance of caution because plaintiff is proceeding pro se, I
have construed his pleadings more liberally and held them to a less stringent standard than formal pleadings
drafted by lawyers. The recommendations are detailed and well-reasoned. Contrastingly, plaintiff's
objections are imponderous and without merit.
Am. Order Overruling Objections To and Adopting Recommendations of the U. S. Magistrate Judge, Cogswell v.
United States Senate, No. 08-cv-01929-REB-MEH, 2009.DCO.0001404, 9 (D.Colo. Mar. 2, 2009) (emphasis
added). See also, e.g., Shell v. Devries, No. 06-cv-00318-REB-BNB (D.Colo. Jan. 30, 2007); Signer v. Pimkova,
No. 05-cv-02039-REB-MJW (D.Colo. Nov. 30, 2006); Baldauf v. Garoutte, No. 03-RB-01104 (D.Colo. Jul. 20,
2006) (same boiler-plate language used).
I personally had the surreal experience of having a federal district judge invoke 28 U.S.C. 1915, intended to
limit access to the courts by federal prisoners proceeding in forma pauperis, in the dismissal of a pristine question of
constitutional law (whether I have a right to certiorari review of a lower court decision in irreconcilable conflict with
binding precedent of the United States Supreme Court) that has never been answered by any court. Federal judges
routinely violate citizens rights under law because they can.
28

See e.g., 4 Coke, Inst. of the Lawes of England 117 (re: Baron of the Exchequer). Lesser lords were also given
authority to bestow freeholds, creating an effective multi-tiered political patronage system where everyone from
paymasters to judges to parish clerks enjoyed job security. See e.g., Harcourt v. Fox [1692], 1 Show. 426 (K.B.)
(clerk of the peace). Good behavior tenure, and the use of the writ of scire facias to enforce it, is almost as old as
Magna Carta. The writ itself can be traced to the early fourteenth century; it was used to punish abuse of office since
the reign of Edward VI. 2&3 Edw. 6, c. 8, 13 (ca. 1540).
29

More specifically, Lord Coke listed three grounds for forfeiture of good behavior tenure: abuse of office, nonuse
of office, and willful refusal to exercise an office. R. v. Bailiffs of Ipswich [1706] 91 Eng. Rep. 378 (K.B.) (corporate
recorder forfeited his office for failure to attend corporate meetings); Henry v. Barkley [1596] 79 Eng. Rep. 1223,
1224 (K.B.); see generally, Saikrishna Prakash & Steven D. Smith, How to Remove A Federal Judge, 116 Yale L.J.
72, 88-128 (2006). Blackstone adds that "oppression and tyrannical partiality of judges, justices, and other magistrates, in the administration and under the colour of their office [could be prosecuted] either by impeachment in parliament, or by information in the court of king's bench." 4 Wm. Blackstone, Commentaries on the Laws of England
140-41 (1765).
30

Act of Settlement [1701], 12 & 13 Will. 3, c. 2, 3, cl. 8.

31

Id. (" Judges Commissions be made Quam diu se bene Gesserint and their Salaries ascertained and established but
upon the Address of both Houses of Parliament it may be lawfull to remove them.")

32

See, United States v. Wilson, 32 U.S. 150, 160 (1833) (re: pardon power). As James Madison explained, whenever
"a technical word is used [in the Constitution], all the incidents belonging to it necessarily attended it." 3 J. Elliot,
Debates on the Federal Constitution 531 (1836) (remarks of James Madison in the course of debate at the Virginia
Ratification Convention). This principle was also accepted by Judge Pendleton, Chief Justice Marshall, and Edmund
Randolph in the course of that debate. Id. at 546, 558-59, 573.

33

This was established a century ago in the investigation of Judge Emory Speer of the District of Georgia, charged
with "despotism, tyranny, oppression, and maladministration" in the course of his judicial decision-making. Charles
15

Geyh, When Courts and Congress Collide: The Struggle for Control of Americas Courts 160 (U. Mich. Pr. 2008).
Specifically, the congressional committee concluded that "a series of legal oppressions [constituting] an abuse of
judicial discretion" did not constitute an impeachable offense, id. at 160-61 (quotations omitted), despite their being
self-evident serial violations of his good behavior tenure).
34

This is but one of the myriad instances in which Scaliawidely regarded as the father of modern originalismis
hoist on his own petard. While Scalia is about as faithful to his own originalism as Tiger Woods was to ex-wife Elin,
see, Randy Barnett, Scalia's Infidelity: A Critique of Faint-Hearted Originalism, 75 U. Cin. L. Rev. 7, 13 (2006) (I
would conclude from his Taft Lecture and his behavior on the Court that Justice Scalia is simply not an originalist.),
his central argument for originalism borders on the unassailable: [T]he main danger in judicial interpretation of the
Constitutionor, for that matter, in judicial interpretation of any lawis that the judges will mistake their own predilections for the law. Antonin Scalia, Originalism: The Lesser Evil, 57 U. Cin. L. Rev. 849, 863 (1989). In theory,
original intent acts like a leash, keeping the curs on our benches within their proper bounds. In practice, judges have
broken their leashes a long time ago.
The true originalist always starts with the pertinent text of the Constitution. First, we look at the text applicable to
impeachment:
The President, Vice President and all civil Officers of the United States, shall be removed from Office on
Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.
The Senate shall have the sole Power to try all Impeachments.
Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification
to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall
nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.
U.S. Const. art. II, 4; art. I, 3, cl. 6-7.
Next, we examine the text applicable to good behavior tenure:
The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour,...
U.S. Const. art. III, 1.
This naturally begs the question asked by Professors Prakash and Smith asked in their Yale Law Review article,
Prakash & Smith, How to Remove A Federal Judge, supra n. 29: If "good Behaviour" is coterminous with "Treason,
Bribery, or other high Crimes and Misdemeanors," why is it even there? After all, if all 'civil officers" are liable to
impeachment, judges are "civil officers," and the two terms are coterminous, the latter is redundant. This becomes
painfully clear in Act of Settlement [1701] Stat. 1 W. & M. Sess. 2. c. 2. s.2;
That after the said Limitation shall take Effect as aforesaid Judges Commissions be made Quam diu se bene
Gesserint [on the condition of good behaviour] and their Salaries ascertained and established but upon the
Address of both Houses of Parliament it may be lawfull to remove them.
In Britain, a judge could be removed from office for any reason or no reason at all, on nothing more than a majority vote in both houses of Parliament. As such, the condition of "good behaviour" becomes not only redundant, but
illusory. Again, history resolves this apparent paradox:
Prior to the Act of Settlement the Crown could have proceeded against judges holding office during good
behaviour by filng a writ of scire facias to repeal their letters patent, or by criminal information.
Shimon Shetreet and Sophie Turenne, Judges on Trial: The Independence and Accountability of the English Judiciary 315 (2d ed. 2013).
Prior to the Act of Settlement, justice was the concern of the Crown. The only power Parliament exercised over
the judiciary was the power to impeach, and on the grounds stated in our own Constitution. What the Act did was
end the practice of firing judges when the King or Queen died, and give Parliament the power of address. Judges
could still be removed for violation of their good behavior tenure -- either by the Crown, or by an aggrieved litigant,
16

as Blackstone explained. Judges could also be removed by criminal information. The only material change in that
regard was that Parliament acquired the power of address.
The logical conclusion is that the two terms coexisted peacefully because they referred to two entirely different
processes. Impeachment addressed offences against the Crown, and good behavior addressed offences against the
subject. Whereas impeachment was a political question, the removal of a judge for good behavior tenure demanded
an actual trial. Supra, n. 7. The latter was never used on English judges prior to the Act of Settlement because they
served at the pleasure of the Crown, but Barons of the Exchequer enjoyed good behavior tenure, with one invoking it
as an affirmative defense when the King attempted to remove him. 4 E. Coke, Inst. of the Lawes of England *117
(1644); see generally, Berger, Impeachment of Judges and Good Behavior Tenure, 79 Yale L. J. 1475, 1481
(1970). In addition, the Court of Kings Bench possessed the inherent authority to discipline and even remove a
misbehaving inferior court judge as a consequence of their duty of superintendence. Id. at 1503 n. 142.
State constitutions add further to our understanding that these are two different processes. New Jerseys original
constitution provided that while its judges were appointed for limited terms, they were liable to be dismissed, when
adjudged guilty of misbehaviour, by the Council, on an impeachment of the Assembly. N.J. Const. of 1776 (1844),
art. XII. Two standards, enforced by two separate legislative bodies.
Professor Berger further observed that English jurists understood that there were five tools in the toolbox for
removing judges. Berger, Impeachment at 157 ("the decided preponderance of authority, Lord Chancellor Erskine,
Holdsworth, and others, consider that [the parliamentary power of address] did not exclude other means of [judicial]
removal, that is, by impeachment, scire facias, or criminal conviction.") (footnote omitted); see generally, James D.
Cameron (Chief Justice, Arizona Supreme Court), The Inherent Power of a State's Highest Court to Discipline the
Judiciary, 54 Chi-Kent L. Rev. 45 (1977).
To suggest that the Framers did not know and understand this, in the mordant prose of Justice Scalia, taxes the
credulity of the credulous. Maryland v. King, 133 S. Ct. 1958, 1980, 569 U.S. __, (2013) (Scalia, J., dissenting).
Either they incorporated English law by reference when they conditioned judicial sinecures on good behavior, or
they didnt know what in sam hill they were doing. As the latter is risible, the former must be true.
35

Saikrishna Prakash and Steven D. Smith, Removing Federal Judges Without Impeachment, 116 Yale L.J. Pocket
Part 95 (2006), http://yalelawjournal.org/forum/removing-federal-judges-without-impeachment.
36

The Committee of Detail, The National Archives, http://blogs.archives.gov/prologue/?p=10164.

37

1 J. Wilson, The Works of James Wilson, 408-411 (James D. Andrews ed., 1896). Justice Wilson observed that
there was much to imitate in their system, id. at 408, that the Act of Settlement created judgeships that survived the
death of the King, and that under that Act, judges with good behavior tenure could still be removed via address. Id.
The bulk of the debate in both the Philadelphia Convention and subsequent state conventions focused upon whether
Congress should have the same power of address as Parliament.

38

The Federalist No. 78, 437 (Alexander Hamilton) (I. Kramnick ed. 1987).

39

Marbury v. Madison, 5 U.S. 137, 174 (1803).

40

Bell v. United States, 349 U.S. 81, 83 (1955).

41

Raoul Berger, Impeachment: The Constitutional Problems 132 (Harv. Univ. Pr. 1974).

42

Jarrolt v. Moberly, 103 U.S. 580, 586 (1880).

43

U.S. Const. art. II, 4.

44

3 Blackstone, Commentaries at 260-61 (emphasis in original); see, United States v. American Bell Tel. Co., 28
U.S. 315, 360 (1888) (explaining the process).

45

Raoul Berger, Impeachment: The Constitutional Problems 132-36 (Harv. Univ. Pr. 1974) (detailed discussion of
applicable precedent in 1789).

17

46

The first illicit usurpation was that of the jurys prerogative under the Seventh Amendment to decide questions of
law and fact, see e.g., Georgia v. Brailsford, 3 U.S. 1, 4 (1793) (jury instructions of Jay., C.J.), in United States v.
Callender, 25 F.Cas. 239 (D.Va. 1800) (Chase, J., riding circuit) (judiciary usurped the jurys rule as final arbiter of
the law in a Seventh Amendment jury trial).
The Seventh Amendment provides that "the right to trial by jury shall be preserved," U.S. Const. amend. VII
"the right which existed under the English common law when the Amendment was adopted." Baltimore & Carolina
Line, Inc. v. Redman, 295 U.S. 654, 657 (1935). The signal feature of a jury trial in 1791 was that the jury was the
decider of both fact and law. Georgia v. Brailsford, supra. The purpose of this "Heaven-taught institution," Fabius,
Letter (to the editor), Delaware Gazette (1788), as reprinted in, John Dickinson, The Letters of Fabius, in 1788, on
the Federal Constitution; and in 1797 on the Present Situation of Public Affairs 32 (1797), is to "to guard agst. Corrupt Judges."
According to Richard Henry Lee, fourth President of our Continental Congress, the singular virtue of the trial by
jury is that it offered protection of the public from corrupt or aristocratic judges. 1 J. Elliot, Debates on the Federal
Constitution 505 (1836) (remarks of Mr. Lee, of Virginia). Thomas Jefferson concurred, writing that to anoint judges as ultimate arbiters of all constitutional questions was "a very dangerous doctrine indeed, and one which would
place us under the despotism of an Oligarchy." Thomas Jefferson, Letter (to William C. Jarvis), Sept. 28, 1820, at 1.
John Adams added, "[a]s the Constitution requires that the popular branch of the legislature should have an absolute
check, so as to put a peremptory negative upon every act of the government, it requires that the common people,
should have as complete a control, as decisive a negative, in every judgment of a court of judicature." 2 The Works
of John Adams, Second President of the United States 253 (Charles F. Adams ed., Little, Brown & Co. 1850). And
in the Federalist, Hamilton argued that [t]he excellence of the trial by jury in civil cases appears to depend on circumstances foreign to the preservation of liberty. The strongest argument in its favor is, that it is a security against
corruption. As matters now stand, it would be necessary to corrupt both court and jury. The Federalist No. 83 at
464-65 (Alexander Hamilton) (I. Kramnick ed. 1987).
In wrongfully usurping authority entrusted to the people in their capacity as jurors, federal judges effected a slow
and genteel coup dtat, effectively declaring themselves to be our absolute dictators. In arrogating an absolute and
unchallengeable authority to declare what the law is, see Brown v. Allen, 344 U.S. 443, 540 (1953) (Jackson, J., concurring), they have rewritten the Constitution to the point where it would be unrecognizable to the Framers. Cases in
point include the judicial creation of an absolute judicial immunity in tort, Bradley v. Fisher, 80 U.S. 335 (1871), the
brazen revision of the Eleventh Amendment, Hans v. Louisiana, 134 U.S. 1 (1890) (creation of a second Eleventh
Amendment; see e.g., John Paul Stevens, "Two Questions About Justice," 2003 Ill. L. Rev. 821) (historical analysis
of Hans), invention of a sovereign immunity, United States v. Lee, 106 U.S. 196, 205 (1882), that must be expressly
and unequivocally waived, United States v. Mitchell, 445 U.S. 535, 538 (1980), whereas in Britain, the King waived
immunity whenever justice required. Marbury v. Madison, 5 U.S. at 163. Moreover, they have rebuffed any attempt
by Congress to overturn the law they have created, e.g., Pierson v. Ray, 386 U.S. 547 (1967) (rewriting the Civil
Rights Act to preserve absolute judicial immunity), Sosa v. Alvarez-Machain, 542 U.S. 692, 728 (2004) (reducing a
valid treaty to a legal nullity to preserve absolute immunity.
Defined broadly, the list of sins would fill a Brandeis brief. Many cases involve the shrinking of court dockets,
e.g., Hans, supra, Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), Ashcroft v. Iqbal, 556 U.S. 662 (2009), see
Mark W. Bennett, Essay, 57 N.Y.L. Sch. L. Rev. at 688 & n. 11 (2012-13) (admitting that he abused the tool of
summary judgment to clear his docket). To his credit, Judge Bennett is of the opinion that it is being overused by his
colleagues, and should be abolished. Id. at 686.
47

I am not merely saying this. Over the past fifteen years, and through more than a dozen lawsuits, I have proven it
beyond reasonable dispute. In logical succession, I have attempted to (1) challenge the constitutionality of a state
bar admission rule affecting me uniquely (in reliance on District of Columbia Court of Appeals v. Feldman, 460 U.S.
462, 482-83 (1983)) (2) challenge the constitutionality of the practice of issuing unpublished opinions which are in
irreconcilable conflict with binding precedent (in reliance on State Oil Co. v. Khan, 522 U.S. 3, 20 (1997) (only
Supreme Court can overturn a precedent)), (3) vindicate my procedural due process right to not have matters decided
by a judge with a personal financial interest in the outcome of the case (in reliance on Tumey v. Ohio, 273 U.S. 510,
523 (1927); Dr. Bonhams Case [1610] 8 Co. Rep. 107a (C.C.P.)), and (4) vindicate my right to equal and impartial
justice under the law, Leeper v. Texas, 139 U.S. 462, 468 (1891), through various procedural remedies (in reliance
on Marbury v. Madison, 5 U.S. 137 (1803)), including my right to an authentic Seventh Amendment (in reliance on
18

Thompson v. Utah, 170 U.S. 343, 350 (1898) and Baltimore & Carolina Line, Inc. v. Redman, supra; see also, Suja
A. Thomas, Why Summary Judgment Is Unconstitutional, 93 Va. L. Rev. 139 (2007)), to no avail. For me, equal
justice under law is little more than a mere shibboleth on the frieze of the Supreme Court building.
48

[O]n the one hand, it is presumed, that juries are the best judges of facts; it is, on the other hand, presumable, that
the court are the best judges of law. But still both objects are lawfully, within your power of decision. Georgia
v. Brailsford, 3 U.S. 1, 4 (1793) (jury instructions of Jay., C.J.; emphasis added).
49

As original proceedings in the Supreme Court are administered by special masters, see e.g., First Interim Report of
the Special Master, South Carolina v. North Carolina, No. 138 (U.S. Nov. 5, 2008), such a delegation would be presumptively constitutional.
50

Stephen Breyer, et al., Implementation of the Judicial Conduct and Disability Act of 1980: A Report to the Chief
Justice (Sept. 2006) at 1.

51

The Supreme Court retains appellate jurisdiction sufficient to ensure that judges due process rights are protected.
U.S. Const. art. III, 2, cl. 2. And more specifically, as the standard of good behavior has always precluded removal
from office for innocent errors in judgment, and a showing of good faith has historically been a complete defense in
these cases, the virtue of judicial independence would not be at grave risk.

52

A Conversation with Justice Clarence Thomas, 36-10 Imprimis 6 (Oct. 2007) (emphasis added).

53

Robert H. Bork, Coercing Virtue: The Worldwide Rule of Judges 13 (AEI Press, 2003).

54

Whereas the Framers generation could proclaim that their Constitution could not precipitate an absurd and unjust
result if any plausible alternative were available, see e.g., United States v. Amer. Trucking Assns., Inc., 310 U.S.
534, 542-43 (1940); Haggar Co. v. Helvering, 308 U.S. 389, 394 (1940), as Justice Thomas laments, A Conversation with Justice Clarence Thomas, 36-10 Imprimis 6 (Oct. 2007), centuries of judicial infidelity has corroded its
limitations on the judicial power to the point that it can be called a coup dtat. Robert H. Bork, Coercing Virtue:
The Worldwide Rule of Judges 13 (AEI Press, 2003).
55

The modern doctrine of judicial supremacy would have been anathema to the Founding Fathers, as it merely
changes this master for that. Thomas Jefferson, Notes on the State of Virginia 252 (Query 13) (1783).
56

Abraham Lincoln, Speech (on the Kansas-Nebraska Act, Springfield, IL), Oct. 16, 1854.

57

If you pay for cheap justice, you must expect to get cheap justice. 1 Proceedings and Debates of the Constitutional Convention of the State of Ohio 1066 (Apr. 4, 1912) (stmt. of Mr. Taggart). Rather than expand the courts to
meet the demand, federal courts have responded by rationing justice, inventing doctrines and rationales designed to
reduce their workload. And when that fails, judges simply defy the law.
As a matter of both law and logic, a right cannot exist without an effective remedy for its breach. Ashby v. White
[1703] 92 Eng.Rep. 126, 136 (H.C.); Poindexter v. Greenhow, 114 U.S. 270, 303 (1884) ("To take away all remedy
for the enforcement of a right is to take away the right itself."). Recognizing this, and drawing largely on American
leadership, see e.g., (Justice) Robert Jackson, Letter (to President Truman), Jun. 7, 1945 (We stand on the principle
that even a King is still under God and the law.), the world community enacted the International Covenant on
Civil and Political Rights, 999 U.N.T.S. 171 (entered into force Mar. 23, 1976) (ratified by the United States Sept. 8,
1992) (hereinafter, the ICCPR or the Covenant). An international bill of rights, the only discernible purpose of
the ICCPR was to abolish the barbaric medieval doctrine that the King can do no wrong. Id., art 2, cf., the Universal Declaration of Human Rights (G.A. Res. 217A(III), U.N. Doc. A/810 (1948)) (the two are almost identical, apart
from the ICCPRs enforcement provision). The ICCPR is perhaps the clearest example of judicial lawlessness in
our generation.
Judges keep telling us there is a correct way to interpret a treaty, and it looks a lot like the correct way to interpret
any other statutory or constitutional provision. In construing a treaty [courts] first look to its terms to determine
its meaning." United States v. Alvarez-Machain, 504 U.S. 655, 665 (1992). "In determining whether a treaty is selfexecuting courts look to the intent of the signatory parties as manifested by the language of the instrument, and if the
instrument is uncertain, recourse must be had to the circumstances surrounding its execution." Diggs v. Richardson,
19

555 F.2d 841, 851 (D.C. Cir. 1976); cf., e.g., E.g., Lake County v. Rollins, 130 U.S. 662, 670 (1889) ("The object of
construction, applied to a constitution, is to give effect to the intent of its framers, and of the people in adopting it.").
Importantly, treaty provisions are self-executing if they require no legislation to make them operative. Whitney v.
Robertson, 124 U.S. 190, 194 (1888).
When we ask what the intent of the signatory parties was, one must bear in mind that there are (at last count) 168
signatory parties, representing essentially the entire worldand they kind-of expect that when Lady Liberty makes a
vow to honor and uphold a treaty, she will not engage in adultery. The Vienna Convention on the Law of Treaties,
1155 U.N.T.S. 331 (entered into force Jan. 27, 1980) (the United States is not a signatory), makes it clear that the
law of contract governs treaties. The Preamble declares in pertinent part that the principles of free consent and of
good faith and the pacta sunt servanda [agreements of the parties must be observed] rule are universally recognized.
id., preamble. It further states: Every treaty in force is binding upon the parties to it and must be performed by them
in good faith, id., art. 26, and [a] party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. Id., art. 27. And most importantly for purposes of this analysis, any reservation made by a
signatory State that is incompatible with the object and purpose of a treaty is a legal nullity, id., art. 19, and such a
reservation will generally be severable, in the sense that the Covenant will be operative for the reserving party without benefit of the reservation. Hum. Rts. Comm. Gen. Comment No. 24 (52), para. 18, U.N. Doc. CCPR/C/21/Rev.1/Add.6 (1994). And in fact, the Human Rights Commission took the United States to task for its failure to take
fully into consideration its obligation under the Covenant not only to respect, but also to ensure the rights prescribed
by the Covenant. Concluding Observations of the Human Rights Comm.: United States of America, U.N. Doc. No.
CCPR/C/USA/CO/3/Rev.1, para. 10 (2006).
Not only did the rest of the world expect the United States to uphold her commitment, but so did the Senate and
our State Department. During the ICCPR ratification debate, Senator Moynihan warranted that the United States
had undertaken a meticulous examination of [domestic] practice to insure that the United States will in fact
comply with the obligations that it is assuming. This can certainly be viewed as an indication of the seriousness
with which the obligations are regarded rather than an expression of disdain for the obligations. Certainly, there
was a time when the nations of the totalitarian block[sic] ratified obligations without reservation -- obligations
that they had no intention of carrying out. Far better to ratify with the firm intention of living up to the covenants terms.
138 Cong.Rec. S4,783 (Apr. 2, 1992) (statement of Sen. Moynihan). The State Department, likely informed by the
Supreme Courts Whitney decision, warranted to the other signatory parties that it does not believe it necessary to
adopt implementing legislation when domestic law already makes adequate provision for the requirements of the
treaty. United States Dept. of State, Core Document Forming Part of the Reports of States Parties, United Nations
Doc. No. HRI/CORE/USA/2005 (Jan. 16, 2005) at 157. It was further warranted that, whenever conforming legislation is needed to comply with treaty obligations, it is our countrys consistent practice to withhold an instrument
of ratification until conforming legislation is passed:
When necessary to carry out its treaty obligations, the United States generally enacts implementing legislation
rather than relying on a treaty to be self-executing. Thus, for example, to implement the Genocide Convention,
the United States Congress adopted the Genocide Convention Implementation Act of 1987, codified at 18
U.S.C. 1091-93. When such legislation is required, the United States practice with respect to certain treaties
has been to enact the necessary legislation before depositing its instrument of ratification. It is for this reason,
for example, that the United States did not deposit its instrument of ratification for the Convention Against
Torture until 1994, even though the Senate gave its advice and consent to ratification of that treaty in 1990, as
Congress did not approve the necessary implementing legislation until May 1994.
Id. at 156.
But of course, judges dont like the ICCPR, as it slaughters their sacred cow of immunity. Thus, despite the fact
that the intent of not only the rest of the world but Congress and our State Department was that the ICCPR would be
enforceable within our borders, our courts have exercised a judicial veto that the Constitution never granted them.
Alvarez-Machain, supra. THIS IS JUDGES, BREAKING LAWS.
Similarly, in what one professor calls judicial inactivism, Chad M. Oldfather, Defining Judicial Inactivism:
20

Models of Adjudication and the Duty to Decide, 94 Geo. L.J. 121 (2005), judges defy the established precedent of
their courts. Judge Bennett offers one example:
As employment discrimination cases worked their way through the Eighth Circuit in the 1990s and beyond, the
principles that summary judgment was disfavored or should be used sparingly were ignored far more often
than they were followed by both the district courts and the Eighth Circuit Court of Appeals. The federal
reporters are filled with hundredsif not thousandsof employment discrimination cases where, despite the
fact that these principles were the existing law of the circuit, courts swiftly granted summary judgment.
Early in my career as a district court judge, I was guilty of this, too.
Bennett, Essay at 686 (emphasis added); see also, e.g., Erwin Chemerinsky, Closing the Courthouse Doors to Civil
Rights Litigants, 5 U. Pa. J. Const. L. 537, 539 (2002) (listing ways the Rehnquist Court have limited the access to
legal remedies of civil rights litigants). The theme is always the same: the only rights you have are the ones you
are able to enforce, and if you cant force recalcitrant judges to enforce them, you dont have them.
58

In a lecture delivered while neglecting his day job, Stanford constitutional law professor and former Tenth Circuit
judge Michael McConnell explains the Lockean bargain we call society:
[T]he essence of the social contract is that we relinquish certain of our natural rightsmost fundamentally, the
right to be a judge in our own case and to do violenceuse violence against othersand we receive in return
more effectual protection for certain of our rights, plus the enjoyment of certain positive rightsthat is, rights
that are created by the creation of political society. Civil rights are the rights we enjoy after entering the state
of civil society. Some civil rights are also natural rights, but now enjoying the more secure protection of civil
society.

Michael W. McConnell, Natural Rights, Enumerated Rights, and the Ninth Amendment, Sumner Canary Lecture
(Case Western U., Oct. 28, 2008) (transcribed by author), video at http://www.youtube.com/watch?v=bLANRrZPmk (last visited Mar. 16, 2009).
This paradigmthe intellectual foundation of our Declaration of Independenceis formally codified in the New
Hampshire Constitution: When men enter into a state of society, they surrender up some of their natural rights to
that society, in order to ensure the protection of others; and, without such an equivalent, the surrender is void. N.H.
Const. art. 3. [W]henever the ends of government are perverted, and public liberty manifestly endangered, and all
other means of redress are ineffectual, the people may, and of right ought to reform the old, or establish a new government. Id., art. 10. Or to put it in the incomparable prose of Mark Twain, the only rational patriotism, is loyalty
to the Nation ALL the time, loyalty to the Government when it deserves it." Mark Twain, The Czars Soliloquy, 180
N. Amer. Review 324 (1905) (emphasis in original). When government fails in its duty to afford us the protection of
the laws, Marbury v. Madison, 5 U.S. at 163, it constitutes a fundamental breach of the social contract, thereby rendering it void.
59

Anastasoff v. United States, 223 F.3d 898, 901, vacated as moot, 234 F.3d 1054 (8th Cir. 2000) (emphasis added)
(citing, e.g., 1 E. Coke, Institutes of the Lawes of England 51 (1642). ("It is the function of a judge not to make, but
to declare the law); 1 Wm. Blackstone, Commentaries on the Laws of England 69 (1765) (the judges are "sworn to
determine according to the known laws.)). See also, e.g., Sir Francis Bacon, Essays LVI (Of Judicature) (1620)
(judge is to interpret law, and not to make law, or give law.") There is no contrary authority.
60

The paradigmatic definition of tyranny is given by John Locke:

AS usurpation is the exercise of power, which another hath a right to; so tyranny is the exercise of power beyond
right, which no body can have a right to.
Where-ever law ends, tyranny begins, if the law be transgressed to another's harm; and whosoever in authority
exceeds the power given him by the law, and makes use of the force he has under his command, to compass
that upon the subject, which the law allows not, ceases in that to be a magistrate; and, acting without authority,
may be opposed, as any other man, who by force invades the right of another.

John Locke, Second Treatise of Government 199. 202 (1695) (emphasis added). Locke goes on to note that the
right to resort to lethal force against a magistrate exists only where there is no adequate remedy at law. Id. at 222.
21

Madison concurred, observing that preservation of a free government

.requires not merely, that the metes and bounds which separate each department of power may be invariably
maintained; but more especially, that neither of them be suffered to overleap the great Barrier which defends
the rights of the people. The Rulers who are guilty of such an encroachment, exceed the commission from
which they derive their authority, and are Tyrants. The People who submit to it are governed by laws made
neither by themselves, nor by an authority derived from them, and are slaves.
James Madison, Address to the General Assembly Of the Commonwealth Of Virginia (undated), as reprinted in 2 J.
Madison, The Writings of James Madison (1783-1787) at 122-23 (emphasis added).

22