The Stalin Principle: Power -- Accountability = Tyranny

It is of overwhelming importance, however, who it is that rules me. Today’s

decree says that my Ruler, and the Ruler of 320 million Americans coast-to-
coast, is a majority of the nine lawyers on the Supreme Court.
—Justice Antonin Scaliai

Over more than two centuries, our judiciary has systematically dismantled all the safeguards
against judicial tyranny the Framers embedded in our Constitution and laws. They raped Lady
Liberty in 1800, obliterated the rule of law in 2000, and jettisoned any pretense of being a court of
law on December 1.

They can only rule by consent, and I hereby withdraw my consent.

While Justice Scalia enjoyed being our Ruler so much that he was happy to “work for free,” 1
when the Court’s most petulant toddler didn’t get his way, he threw tantrums any three-year-old
would be proud of. And in his anger, he inadvertently uttered the truth: that our Supreme Court is
no longer a court, but an unelected super-legislature, no longer constrained by even the Constitu-
tion itself. “This practice of constitutional revision … has rob[bed] the People of the most impor-
tant liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the
freedom to govern themselves.”2 As Abraham Lincoln declared, "no man is good enough to govern
another man, without the other’s consent," 3 and the Framers’ Constitution—and not the
SCOTUStitution, as rewritten by our judges—marks the outer limit of our consent.

The collective temper tantrum thrown by Scalia, Thomas, and Roberts in Obergefell was an
admission of guilt. If our judges have only the power “to say what the law is, not what it should
be,”4 and it is wrong for them to recognize unenumerated rights they do not construe as “funda-
mental,”5 then a fortiori, it is unlawful for judges to “interpret” clear constitutional provisions into
oblivion. But that was precisely what they have been doing for centuries. The list of sins is long
and, as Scalia observes, has had one overriding aim—to consolidate judicial power:

[T]he Court does not wish to be fettered by any such limitations on its preferences. The
Court's statement that it is "tempting" to acknowledge the authoritativeness of tradition in
order to "cur[b] the discretion of federal judges," is of course rhetoric rather than reality; no
government official is "tempted" to place restraints upon his own freedom of action, which is

1
“I’ve been working for free, which probably means I’m too stupid to be on the Supreme Court.” 60 Minutes: Justice
Scalia on the Record, Both Online and Off (CBS television broadcast Apr. 27, 2008) (transcript available at
http://perma.cc/A64CQNBB).
2
Obergefell v. Hodges, No. 14-556, 576 U.S. __ (2015) (Scalia, dissenting; slip op. at 2).
3
Abraham Lincoln, Speech (on the Kansas-Nebraska Act, Springfield, IL), Oct. 16, 1854.
4
Obergefell, supra ., Roberts, C.J., dissenting) (slip op., at 2).
5
Id., Roberts, C.J., dissenting) (slip op., at 11).

1
 why Lord Acton did not say "Power tends to purify." The Court's temptation is in the quite
opposite and more natural direction—towards systematically eliminating checks upon its own
power; and it succumbs. 6

Contrary to the popular wisdom, these are not Republican or even Democratic sins; these are
JUDICIAL sins. As Justice Kagan confessed whilst still a civilian, our Supreme Court has long
ago ceased to function as a judicial tribunal, more accurately resembling a band of Platonic
Guardians--absolute dictators, imposing their will on society in an ad hoc, ex post facto manner.7
And as they no longer do error-correction, inferior court judges are free to vent their spleen on
unfortunate litigants, with no meaningful recourse to their victims. The stench has been obvious
to the legal community for decades, but by now, even the public has caught on.

Welcome to the Soviet Union!

Just when these American citizens needed their rights the most, their government took ‘em
away. And rights aren’t rights if someone can take ‘em away. They‘re privileges.
—George Carlinii
What good is a Bill of Rights that can’t be enforced? For a people to enjoy the blessings of living
under what John Adams called “a government of laws, not men,” the laws must be knowable,
enforceable, and of uniform application. In short, Judge Lucy cannot invite Charlie Brown to kick
the football and then, pull it away from him at the last second.
The “signed document,” of course, is the Constitution. According to its terms, we ostensibly
enjoy an array of procedural “rights,” designed to protect a portfolio of inalienable rights against
wrongful invasion by agents of government. But as Chief Justice Roberts confesses, words alone
cannot protect us:
"Do not think for a moment that those words alone will protect you; consider some other
grand words," he said before reciting similar words from the Soviet Union's constitution,
which he called "all lies."

6
Planned Parenthood of S.E. Pa. v. Casey, 505 U.S. 833, 981 (1992) (Scalia, J., dissenting; internal ref. omitted).
7
Sam Stein, Kagan: In Bush v. Gore, Court Was Affected By Politics and Policy, Huffington Post, May 19, 2010.
2
 "So by all means celebrate the words of the First Amendment," he said. "But remember
also the words of the Soviet constitution.”8
Understanding that no one could be trusted with unchecked power, the Framers went to great
lengths to limit judicial discretion. But as Chief Justice Roberts points out, our Constitution is a
mere “parchment barrier.” And it no longer protects us. It is “all lies.”
When the Framers entrusted “the judicial Power” to our courts, they had something specific in
mind. From time immemorial, it had been understood that the office of the judge was jus dicere—
the power to declare the law, as opposed to writing it. Francis Bacon, Essays LVI (Of Judicature)
(1620). Lord Coke maintained that "[i]t is the function of a judge not to make, but to declare the
law, according to the golden mete-wand of the law and not by the crooked cord of discretion." 1 E.
Coke, Institutes of the Laws of England 51 (1642). Blackstone adds that a judge is "sworn to deter-
mine, not according to his own judgments, but according to the known laws.” 4 Wm. Blackstone,
Commentaries on the Laws of England *69 (1765). Alexander Hamilton argued that to "avoid an
arbitrary discretion in the courts, it is indispensable that [judges] should be bound by strict rules and
precedents, which serve to define and point out their duty in every particular case before them." The
Federalist No. 78, 470 (Alexander Hamilton) (I. Kramnick ed. 1987). Thomas Jeffer-son saw the
judge as “a mere machine,” expecting the law to “be dispensed equally & impartially to every
description of men.” Thomas Jefferson, Letter (to Edmund Pendleton), Aug. 26, 1776. As in all but
the most exotic cases, the “law” is established, the judge was expected to be little more than an
administrator, playing what Professor Llewellyn called “the game of matching cases.” Karl
Llewellyn, The Bramble Bush 49 (1960).
The Framers’ Constitution contained robust procedural safeguards which, if observed, would
control judicial abuses of office in all but the most extreme circumstances. The first, of course, is
the English civil jury trial, now all but extinct. The second was a written opinion by a judge—
today, virtually all opinions are written by clerks, of which some are still in law school. The third
was traditional appellate review, where you were able to argue in front of judges who had actually
read your briefs, and receive an opinion written by judges. The fourth was mandatory review by
the Supreme Court upon a writ of error or certiorari, resulting in a written opinion with binding
precedential effect. The fourth was the discipline imposed by stare decisis. But even if all these
safeguards failed, you could literally fire the judges.
But in their quest for absolute power, our judiciary made all of these safeguards disappear.
Brutus warned us.9 As did Thomas Jefferson.10 For two centuries, judges have raped, beaten,
and sodomized that venerable document to the point where it is no longer even recognizable, in what

8Melanie Hicken, Chief Justice Roberts Headlines Newhouse III Opening, The Daily Orange (Syracuse), Sept. 20,
2007.
9Brutus, Essay XV (Mar. 20, 1788), reprinted in, 1 The Complete Anti-Federalist 439 (H. Storing, ed. 1981). It is
widely believed by scholars that Judge Robert Yates wrote Anti-Federalist essays under the pseudonym “Brutus.”
10 Thomas Jefferson, Letter (to Admantios Coray), Oct. 23, 1823 at 5.

3
Judge Robert Bork called a "judicial coup d’êtat.”11 As Judge Posner summarizes, “[i]f you look
at the entire body of constitutional law, that body of law bears very little resemblance to the text of
the Constitution in 1789, 1791, and 1868.”12 And under the judges’ SCOTUStitution, 13
a
dditions and subtractions have been so extensive that the Bill of Rights can fairly be called “The
Bill of Polite Suggestions.” George Will famously called them “our robed masters;” citing Will,
Judge Bork called them a band of outlaws:
The Justices are our masters in a way that no President, Congressman, governor, or other
elected official is. They order our lives and we have no recourse, no means of resisting, no
means of altering their ukases. They are indeed robed masters. But "band of outlaws"? An
outlaw is a person who coerces others without warrant in law. That is precisely what
a majority of the present Supreme Court does. That is, given the opportunity, what the
Supreme Court has always done.14

The Death of the Seventh Amendment: United States v. Callender

The Framers’ First Amendment wasn’t nearly as robust as our modern iteration. The Alien and
Sedition Acts were enacted by John Adams and the Federalists; the one that matters is “An Act for
the punishment of certain crimes against the United States,” ch. 74, 1 Stat. 596 (1798) (expired),
intended to criminalize “false, scandalous, and malicious writing or writings against the United
States” and an array of public officials. James T. Callender had a tongue so sharp that he fled the
British Isles to avoid prosecution, and he promptly attracted the ire of the Federalists. In the Preface
to The Prospect Before Us, he wrote, “The documents which I had collected concerning the
shameful waste of public money, would fill many a sheet of paper.” 15 Whether this was true is for
historians to debate; suffice it to say that John Adams was not pleased.
Callender was indicted under that statute, and as chance would have it, his case was tried by
Justice Samuel Chase, riding circuit. And in his instructions to the jury, he wrote this remarkable
statement:
Where law is uncertain, partial, or arbitrary; where justice is not impartially administered
to all; where property is insecure, and the person is liable to insult and violence, without
redress by law, the people are not free, whatever may be their form of government. 16

11 Robert H. Bork, Coercing Virtue: The Worldwide Rule of Judges 13 (AEI Press, 2003).
12Josh Blackman, Judge Posner on Judging, Birthright Citizenship, and Precedent, Nov. 6, 2015 (partial transcript of
Judge Posner’s talk at the 2015 Loyola Constitutional Law Colloquium), at
*ttp://joshblackman.com/blog/2015/11/06/judge-posner-on-judging-birthright-citizenship-and-precedent/
13 See King v. Burwell, No. 14-114, 576 U.S. ___ (2015) (Scalia, J., dissenting) (slip op., at 23) (“SCOTUScare”).
14 Robert H. Bork, Our Judicial Oligarchy, 67 First Things 21, 24 (Nov. 1996) (emphasis added).
15
James T. Callender, The Prospect Before Us 4 (1800).
16
Samuel Chase, Grand Jury Instructions (manuscript), May 2, 1803, reprinted in Charles Evans, Report of the Trial
of the Hon. Samuel Chase 60 (1805)

4
In a sense, this dispute was resolved in the first day of law school. Even before the sorcerers' new
apprentices finish mining the nuances of the Speluncean Explorers hypo, they must confront the
most sacred precedent in American law:
The very essence of civil liberty certainly consists in the right of every individual to claim
the protection of the laws whenever he receives an injury. One of the first duties of gov-
ernment is to afford that protection. In Great Britain, the King himself is sued in the
respectful form of a petition, and he never fails to comply with the judgment of his court.
In the third volume of his Commentaries, page 23, Blackstone states two cases in which a
remedy is afforded by mere operation of law.
"In all other cases," he says,
"it is a general and indisputable rule that where there is a legal right, there is also a
legal remedy by suit or action at law whenever that right is invaded."
And afterwards, page 109 of the same volume, he says,
"I am next to consider such injuries as are cognizable by the Courts of common law.
And herein I shall for the present only remark that all possible injuries what-soever
that did not fall within the exclusive cognizance of either the ecclesiastical, military,
or maritime tribunals are, for that very reason, within the cognizance of the common
law courts of justice, for it is a settled and invariable principle in the laws of England
that every right, when withheld, must have a remedy, and every injury its proper
redress."
The Government of the United States has been emphatically termed a government of laws,
and not of men. It will certainly cease to deserve this high appellation if the laws fur-
nish no remedy for the violation of a vested legal right.
Marbury v. Madison, 5 U.S. 137, 163 (1803) (emphasis added).
Whereas Marbury was the proof-text for the doctrine of judicial supremacy, 17 Justice Chase’s
legal reasoning in appropriating the jury's traditional power to interpret the law bordered on self-
satire:
It must be evident, that decisions in the district or circuit courts of the United States will be
uniform, or they will become so by the revision and correction of the supreme court; and
thereby the same principles will pervade all the Union; but the opinions of petit juries will
very probably be different in different states.
United States v. Callender, 25 F.Cas. 239, 257 (D.Va. 1800) (Chase, J., riding circuit).

17
"We are not final because we are infallible, but we are infallible only because we are final." Brown v. Allen, 344 U.S.
443, 540 (1953) (Jackson, C.J., concurring). The term is defined with some precision in Frederick Schauer, Judicial
Supremacy and the Modest Constitution, 92 Cal. L. Rev. 1045 (2004), referring to the modern iteration of Justice
Jackson's famous bromide.

5
 In illicitly wresting the constitutionally preserved authority to decide issues of law from the civil
jury, cf., Georgia v. Brailsford, supra, Justice Chase argued that the parties had a right to uniform
application of the law. He was never quite able to explain why unelected federal judges could be
trusted to honor their oaths,18 whereas jurors who had no interest in the outcome of the case (and,
took similar oaths) could not, especially given the assistance of a federal judge learned in the law.
Now, if we don’t have the right to uniform application of law and procedure, it is hard to see why
we would even need judges at all. 19
Whereas Chase was himself a Framer, the people who ratified this Constitution definitely had
something else in mind. The right to a trial by jury preserved by the Seventh Amendment is that
which existed at common law at the time the Amendment was adopted, Baltimore & Carolina Line,
Inc. v. Redman, 295 U.S. 654, 657 (1935), and the signal feature of the jury trial in 1791 was that
the jury—not judges!—had lawful authority to “determine the law as well as the fact in
controversy.” Georgia v. Brailsford, 3 U.S. 1, 4 (1793) (jury instructions of Jay, C.J.). By taking
ultimate decision-making power out of the hands of judges, the Seventh Amendment preserved one
of the "transcendent privileges" of the Englishman: "that he cannot be affected either in his property,
his liberty, or his person, but by the unanimous consent of twelve of his neighbours and equals.” 4
Blackstone, Commentaries *379.
To the Framers’ generation, the right to a jury trial, with one’s peers deciding both the facts and
law, was a sacrosanct right of citizenship. They fought a revolution to secure it; several Framers
refused to sign the Constitution because it did not adequately preserve it. Justice Rehnquist drives
this point home: “The founders of our Nation considered the right of trial by jury in civil cases an
important bulwark against tyranny and corruption, a safeguard too precious to be left to the
whim of the sovereign, or, it might be added, to that of the judiciary.” Parklane Hosiery Co., Inc. v.
Shore, 439 U.S. 322, 343, (1979) (Rehnquist, J., dissenting) (emphasis added).
The Callender trial is an object lesson in why the Framers insisted on investing the jury with
ultimate authority to decide issues of both fact and law. The purpose of this “Heaven-taught
institution”20 was “to guard agst. corrupt Judges,”21 reducing them to glorified consiglieri. As
Jefferson explained, it is left “to the juries, if they think the permanent judges are under any biass
whatever in any cause, to take upon themselves to judge the law as well as the fact. They never
exercise this power but when they suspect partiality in the judges, and by the exercise of this power
they have been the firmest bulwarks of English liberty.” 22 By having the judge as a ‘check’ on the

18
This was underscored by the historical irony that Chase was impeached for his conduct in that trial, described as
"marked ... by manifest injustice, partiality, and intemperance." Articles of Impeachment Against Samuel Chase, Art.
IV, as reprinted in, Charles Evans, Report Of the Trial Of the Hon. Samuel Chase (1805), Appendix at 4.
19
According to Yale historian Donald Kagan—to my knowledge, no relation to Elena—in Athens under Pericles
(~450 to 430 BCE), cases were tried before a jury, without judges, lawyers, or orderly procedure. See generally,
Donald Kagan, Introduction to Ancient Greek History, at http://oyc.yale.edu/classics/clcv-205 (lectures 13-16).
20
Fabius, Letter to Editor, Delaware Gazette (1788), 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).
21
2 Farrand, The Records of the Federal Convention of 1787 587 (1909) (statement of Elbridge Gerry (MA)).
22
Thomas Jefferson, Letter (to L’Abbe Arnoux), Jul. 19, 1789 at 2.
6
jury and the jury as a ‘check’ on the judge, a jury trial affords what Alexander Hamilton called a
“double security” against the corruption of either. 23
Concurrences read like a Brandeis brief. 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.24 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." 25. 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." 26 And in the Federalist, Hamilton explains 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." 27 There is no contrary authority.
Today, if an attorney were to repeat the jury instructions Chief Justice Jay gave the Brailsford
jury28 to a civil or criminal jury, he would be disbarred. The Seventh Amendment still stands in the
annals of American law, but it was murdered long ago, and the stench is palpable.

Governmental Immunity: Lady Liberty is AN ADULTERER!

Out of self-preservation, Soviet citizens became practiced in the art of hypocrisy. But as evi-
denced by this side-splitting excerpt from his 2007 State of the Judiciary address, Chief Justice
Roberts has displayed a gift for self-satire even Stalin could envy:
Justice Sidorenko’s words are poignant, but his actions in seeking to reform the Russian
judiciary reflect a more fundamental truth that should resonate with all Americans: When
foreign nations discard despotism and undertake to reform their judicial systems, they look
to the United States Judiciary as the model for securing the rule of law. ...
Most Americans are far too busy to spend much time pondering the role of the United States
Judiciary— they simply and understandably expect the court system to work. But as we
begin the New Year, I ask a moment’s reflection on how our country might look in the

23
The Federalist No. 83 at 464-65 (Alexander Hamilton)
24
1 J. Elliot, Debates on the Federal Constitution 505 (1836) (remarks of Mr. Lee, of Virginia).
25
Thomas Jefferson, Letter (to William C. Jarvis), Sept. 28, 1820, at 1.
26
2 The Works of John Adams, Second President of the United States 253 (Charles F. Adams ed., Little, Brown,
1850).
27
The Federalist No. 83 at 464-65 (Alexander Hamilton).
28
”It may not be amiss, here, Gentlemen, to remind you of the good old rule, that on questions of fact, it is the prov-
ince of the jury, on questions of law, it is the province of the court to decide. But it must be observed that by the same
law, which recognizes this reasonable distribution of jurisdiction, you have nevertheless a right to take upon yourselves
to judge of both, and to determine the law as well as the fact in controversy. On this, and on every other occasion,
however, we have no doubt, you will pay that respect, which is due to the opinion of the court: For, as on 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.”
7
 absence of a skilled and independent Judiciary. We do not need to look far beyond our
borders, or beyond the front page of any newspaper, to see what is at stake. More than two
hundred years after the American Revolution, much of the world remains subject to judicial
systems that provide doubtful opportunities for challenging government action as contrary
to law, or receiving a fair adjudication of criminal charges, or securing a fair remedy for
wrongful injury, or protecting rights in property, or obtaining an impartial resolution of a
commercial dispute.29
Much of the world, including most notably, the United States of America. You just can’t make
this stuff up.
The judge-made law of governmental immunity exists nowhere in the plain text of the Con-
stitution, the spaces between the text, or penumbrae from its emanations. Rather by definition, it
defeats any opportunity for challenging government action as contrary to law or securing a fair
remedy for wrongful injury, thereby eviscerating the Bill of Rights. To state the case is to refute it.
Many have. “Representative democracy ceases to exist the moment that the public functionaries
are by any means absolved from their responsibility to their constituents,” 30 and as Ronald Reagan
put it, some governments “make elaborate claims that citizens under their rule enjoy human rights,”
... but “[e]ven if words look good on paper, the absence of structural safeguards against abuse of
power means they can be taken away as easily as they are allowed.” 31 Professor Olowofoyeku of
Brunel University writes: “You have been injured by the misconduct of a judge. We have to deny
you redress. This is necessary because we have to protect your interests by pro-tecting the judges,
so that they in turn can protect your interests without fear of apprehension.” 32
The Constitution does not grant anyone authority to render the Bill of Rights nugatory, as Con-
gress made clear. Preamble, Bill of Rights (U.S. 1789). But let’s be honest: No one in their right
mind would look to our 1960 Edsel of a judicial system, consistently rated by the World Justice
Project as the most decrepit in the Western world, 33 as a model for how a judiciary should be set up.
You would think that a former managing editor of the Harvard Law Review would know better.
While it is one thing for the courts to find immunity in a constitution that is nominally silent, our
paramount law has spoken directly to the issue for over a quarter-century. The United States of is
a signatory to the International Covenant on Civil and Political Rights (hereinafter, the “ICCPR”),
a treaty ratified by every country in the civilized world.34 The Constitution provides that valid
treaties are the law of the land, U.S. Const. art. VI, cl. 2; Head Money Cases, 112 U.S. 580, 598-99

29
John G. Roberts, Jr., 2007 Year-End Rept. on the Federal Judiciary 2, 3-4 (Jan. 1, 2008).
30
1 St. George Tucker, Blackstone's Commentaries 297 (1803) (editor's app’x.).
31
Ronald Reagan, Speech (Proclamation of Human Rights Day), Dec. 10, 1987.
32
Abimbola A. Olowofoyeku, Suing Judges: A Study of Judicial Immunity 197 (Oxford Pr. 1993).
33
Agrast, M., et al., 2010 WJP Rule of Law Index (Washington, D.C.: The World Justice Project). Justices Breyer,
Ginsburg, O’Connor, and Kennedy and Secretaries Albright, Christopher, Baker, and Powell have lent their
imprimatur to the organization. See http://www.worldjustice-project.org/about/.
34
International Covenant on Civil and Political Rights, 999 U.N.T.S. 171 (entered into force March 23, 1976) (ratified
by the United States Sept. 8, 1992) (hereinafter, “ICCPR”),
http://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV- 4&chapter=4&lang=en (real-time
ratification status).

8
(1884), and Chief Justice Marshall wrote that “an act of Congress ought never to be construed to
violate the law of nations, if any other possible construction remains.” Murray v. the Charming
Betsy, 6 U.S. 64, 118 (1804). Congress expressed its intent that provisions of the ICCPR "will
become binding international obligations of the United States," 138 Cong. Rec. S4,783 (1992) (stmt.
of Sen. Moynihan (D-MA)). Our State Department has warranted to the international community
that whenever conforming legislation is required to comply with treaty obligations, it is our
consistent practice to withhold an instrument of ratification until appropriate legislation is enacted.
United States Dept. of State, Core Doc. Forming Part of the Reports of States Parties, United
Nations Doc. No. HRI- /CORE/USA/2005 (Jan. 16, 2005) at ¶ 157.
In considering ratification, the Committee on Foreign Relations stated that it wanted to defeat
the claim that it was an international hypocrite. Sen. Comm. on Foreign Relations, Report on the
International Covenant on Civil and Political Rights, S. Exec. Rep. No. 23, 3 (102d Sess. 1992) (“In
view of the leading role that the United States plays in the international struggle for human rights,
the absence of U.S. ratification of the covenant is conspicuous and, in the view of many,
hypocritical”). If the ICCPR were not pellucid on its face, this speaks to congressional intent.
Based on the foregoing, it is not logically possible to find that the ICCPR is a non-self-execu-
ting treaty. Chief Justice Marshall said, "where a treaty is the law of the land, and as such affects
the rights of parties litigating in court, that treaty as much binds those rights and is as much to be
regarded by the court as an act of congress." United States v. Schooner Peggy, 5 U.S. 103, 109–10
(1801). And when the United States declares to the world that its law is in full compliance with the
treaty, the Foster v. Nielson (27 U.S. 253 (1829)) “contract” exception cannot apply by definition,
because there is literally nothing left for Congress to do to fulfill its end of the bargain. As such, it
is the law of the land, and enforceable in our courts. See Carlos M. Vázquez, Treaties as Law of the
Land: The Supremacy Clause and the Judicial Enforcement of Treaties, 122 Harv. L. Rev. 599
(2008). Besides, even if judges could claim that the ICCPR was a non-self-executing treaty and that
United States of America lied to the rest of the world in declaring its compliance, unilateral
reservations fundamentally incompatible with the object and purpose of a treaty are void as a matter
of international law. Vienna Convention on the Law of Treaties, art. 19, 1155 U.N.T.S. 331 (entered
into force, Jan. 27, 1980). Thus, to find that it is not the law of the land, you must admit that
Lady Liberty is AN ADULTERER.
That the sovereign is not entitled to immunity for violations of its citizens’ rights has, by vir- tue
of the ICCPR and its First Optional Protocol, and court decisions throughout the world, e.g., Köbler
v Austrian Republic [2003] 3 CMLR 28) (European Union), Simpson v Attorney-Gene-ral
(Baigent’s case), 3 NZLR 667 (CA 1994) (New Zealand), Nelles v. Ontario, 2 S.C.R. 170 (1989)
(Canada), Maharaj v Attorney-General of Trinidad & Tobago (No. 2) [1979] AC 385; Case C-
224/01, justly risen to the level of jus cogens law. But if all of that “furrin” law gave Scalia
heartburn, his own words would have sufficed: “At the time of Marbury v. Madison there was no
doctrine of domestic sovereign immunity, as there never had been in English law.”35

35
Antonin Scalia, “Historical Anomalies in Administrative Law,” as quoted in Ermin Chemerinsky, Against Sovereign
Immunity, 53 Stan. L. Rev. 1201, 1210 & fn. 43 (2001).

9
 While it is certainly “inherent in the nature of sovereignty not to be amenable to the suit of an
individual without its consent,” The Federalist No. 81 at 455 (Alexander Hamilton) (emphasis in
original), the Bill of Rights constitutes that expression of consent, just as it is in Mother England.
Magna Carta c. 61 (1215). To hold otherwise is to say that the Fifth Amendment clause declaring
that no person “be deprived of life, liberty, or property, without due process of law,” U.S. Const.
amend. V, is a gratuitous exercise in intellectual canasta. In light of this fact, Defendant Roberts
buries the needle on industrial-strength irony-detectors the world over:
Roberts emphasized his belief that a judiciary is needed to uphold the U.S. Constitution and
Bill of Rights.
"Do not think for a moment that those words alone will protect you; consider some other
grand words," he said before reciting similar words from the Soviet Union's constitution,
which he called "all lies." "So by all means celebrate the words of the First Amendment," he
said. "But remember also the words of the Soviet constitution.”
In a nation governed by the rule of law, you would expect that the sheer weight of reason and
evidence would have relegated the medieval doctrine of sovereign immunity to the historical dust
bin. But as Thomas Jefferson intoned, “The constitution ... is a mere thing of wax in the hands of
the judiciary, which they may twist, and shape into any form they please,” 36 and predictably, our
judges invariably put their fingers on the scales of justice to redound to their personal benefit.

The Judicial Execution of Private Criminal Prosecution

The citizen’s right to either force public officials to prosecute a crime or prosecute it yourself is
ubiquitous in democratic countries--even in countries that are not exactly staunch redoubts of human
rights, such as Zimbabwe. Even in Harare, a victim of a crime has a legal right to prosecute if their
Attorney-General declines:
In all cases where the Attorney-General declines to prosecute for an alleged offence, any
private party, who can show some substantial and peculiar interest in the issue of the trial
arising out of some injury which he individually has suffered by the commission of the
offence, may prosecute, in any court competent to try the offence, the person alleged to have
committed it.37
The salutary purpose of such a rule, according to Justice Holmes, was to accommodate a natural
desire for revenge within the law by avoiding "the greater evil of private retribution."38 Even in
Tanzania, the notion that the State could be trusted with the exclusive, uncontrolled franchise in
prosecution of crimes is inconceivable, as Professor Nreseko of the University of Botswana notes,
relating comments in an unpublished case of that nation's Court of Appeals:

36
Thomas Jefferson, Letter (to Spencer Roane), Sept. 6, 1819 at 1,
37
Criminal Procedure and Evidence Act, 2004, [Chapter 9:07], Part 13 (Zimbabwe).
38
Oliver W. Holmes, The Common Law 41-42 (1881).
10
 We are surprised because we did not think anyone in our country could be vested with such
absolute and total powers. It would be terrible to think that any individual or group of
individuals could be empowered by law to act even mala fide. As it turned out to our great
relief the exercise of the powers by the DPP under the Criminal Procedure Act is limited by
the Act. Although the powers of the DPP appear to be wide, the exercise is limited by three
considerations. That wherever he exercises the wide powers he must do so only in the public
interest, in the interest of justice and in the need to prevent abuse of the legal process. 39
No other country in the civilised world—not even Zimbabwe!—thinks it is a good idea to grant
the State an exclusive franchise to decide which crimes it will prosecute, and which it will ignore,
without any external control whatever. The right exists throughout the Commonwealth, even if it is
invoked sparingly.40 A brief survey of established Western democracies reveals that, in most
instances, prosecutors have little or no discretion as to whether to prosecute a crime. 41 In our own
hemisphere, most countries have robust private prosecution systems, 42 and of course, our nice
neighbours to the North are light-years ahead of us on the human rights front. The Phillippines has
a separate court—the Sandiganbayan—dedicated to prosecuting public corruption, where private
prosecutors may intervene in specified circumstances.43 And unlike the United States, our former
protectorate still has the writ of certiorari. 44

39
D. N. Nsereko, Prosecutorial Discretion Before National Trials and Int'l Tribunals, Int'l Soc'y for the Reform of
Criminal Law (undated), at http://www.isrcl.org/Papers/Nsereko.pdf, quoting Director of Public Prosecutions v.
Mehboob Akbar Haji & Another, Cr, App. No. 28 of 1992 (unreported).
40
E.g., Barrymore Facing Pool Death Case, BBC News, Jan. 16, 2006 (Great Britain); Plans For Private Prosecution
Against Winnie, BBC News, Nov. 26, 1997 (South Africa: prosecution of Winnie Mandela proposed). Malaysia allows
private criminal prosecution by the aggrieved party, Criminal Procedure Code, Act 593, Sec. 380 (Malaysia) and even
citizen's arrests. Id., Sec. 27(1). While this appears to be a relatively new development, India limits the citizen's standing
to initiate a criminal prosecution of public servants to those directly impacted by their alleged acts. Private complaint
can't be based to prosecute public servant: Court, DNAIndia.com (Press Trust India), Oct. 16, 2010, at
http://www.dnaindia.com/india/1453552/reportprivate-complaint-can-t-be-used-to-prosecutepublic-servant-court. The
procedure is unsettled in Kenya, Kenya: DPP Urges Court to Drop Private Prosecution Case, The Star (Nairobi), Aug.
5, 2013, reprinted at http://allafrica.com/stories/201308052173.html (the right itself appears to be intact, but the
procedure is uncertain).
41
Italy includes an express duty to prosecute in its constitution. Costituzione della Repubblica Italiana [Constitution]
art. 112 (Italy 1947). As anyone who has been following the news already knows, Martin Sieff, Spain Wants Torture
Charges Against Bush Six Dropped, UPI, Apr. 16, 2009, Spain trusts her citizens with wide latitude to initiate criminal
proceedings. Constitución Espanola de 1978 [1978 Constitution] art. 125 (Spain). Prosecutorial discretion in most states
is governed by statute and often, quite limited. See e.g., Hans- Heinrich Jescheck, The Discretionary Powers of the
Prosecuting Attorney in West Germany, 18 Amer. J. Comp. L. 508 (1970). In the Netherlands, whereas public
prosecutors have sole prosecuting authority and statutory discretion as to whether to forego prosecution in the "public
interest," an aggrieved victim can take prosecutors to court to force prosecution. Openbaar Ministerie, The Principle of
Expediency in the Netherlands (Power Point presentation), Oct. 27, 2006, at
http://eulec.org/Downloads/intstrafrecht/expediency-china.pps.
42
See generally, Kathryn Sikkink, The Justice Cascade: How Human Rights Prosecutions Are Changing World
Politics (Norton, 2001).
43
See, Magno v. People, G.R. No. 171542 (S.C. Apr. 6, 2011) (discussing limits on intervention).
44
Id. What we call certiorari technically isn’t; discretionary cert is a contradiction in terms.
11
 As Canada’s Department of Justice observes, the right (and duty) to initiate a private criminal
prosecution is one of those common law safeguards—"a valuable constitutional safeguard against
inertia or partiality on the part of authority," Gouriet v. Union of Post Ofc. Workers, [1978] A.C.
435, 477 (H.L.) (Canada)—flourishing a pedigree as old as the common law itself:
A private citizen's right to initiate and conduct a private prosecution originates in the early
common law. From the early Middle Ages to the 17th century, private prosecutions were the
main way to enforce the criminal law. Indeed, private citizens were responsible for
preserving the peace and maintaining the law. 45
In 1789, private criminal prosecution was a practical necessity. The world’s first bona fide police
force would form decades into the future, 46 and essentially by default, the responsibility of enforcing
public order fell upon the populace. 47 The federal government relied on qui tam actions for
enforcement of the law,48 and for centuries, “it was not only the privilege but the duty of the private
citizen to preserve the King's Peace and bring offenders to justice.” 49 Even in 1875,50 there was no
doubt that in America, a victim of a crime had the clear legal right to prosecute it. 51
So, what happened to it?
At essence, judges simply willed it out of existence. If the Framers ever intended to deprive
citizens of the common law right to initiate a criminal prosecution, one is left to search in vain for
evidence of that intent. 52 And as the prosecution of crime was not seen as an executive function in
1791 but rather, one of the well-established prerogatives of the people, it is unlikely that they would
have even perceived the threat that it could be divested by fiat.

45
Canada Dept. of Justice, The Federal Prosecution Service Deskbook, Part IV, ch. 26 (undated; copy on file).
46
Charles P. Nemeth, Private Security and the Law 6 (3d ed. 2004).
47
See e.g., People ex rel. Case v. Collins, 19 Wend. 56, 65 (N.Y. Sup. Ct. 1837 (mandamus); People ex rel.
Blacksmith v. Tracy, 1 Denio. 617, 618 (N.Y. Sup. Ct. 1845) (general rule unless statute provides otherwise).
48
Steven L. Winter, The Metaphor of Standing and the Problem of Self-Governance, 40 Stan. L. Rev. 1371, 1406-08
(Jul. 1988),
49
Canada Dept. of Justice, The Federal Prosecution Service Deskbook, Part IV, ch. 26 (copy on file).
50
In that year, the Supreme Court found "a decided preponderance of American authority in favor of the doctrine that
private persons may move for a mandamus to enforce a public duty, not due to the . . . government as such, without the
intervention of the government law officer." Union Pacific R. Co. v. Hall, 91 U.S. 343, 355 (1875). The Court drew a
"reasonable implication" that by virtue of its silence, Congress "did not contemplate the intervention of the Attorney
General [to compel compliance with the law] in all cases." Id. at 356.
51
See, Winter, Metaphor of Standing at 1403 (however, a minority of states required the relator to allege a private
right).
52
We can say for certain is that the constitutional charge to the President that “he shall take Care that the Laws be
faithfully executed,” U.S. Const. art. II, § 3, did not extinguish the right to private criminal prosecution. Both the New
York, N.Y. Const. of 1777 art. XIX (1822), and Pennsylvania constitutions, Pa. Const. of 1776, § 20 (1820), had
virtually identical clauses, and were not interpreted as banning it; in Philadelphia, it had devolved into a sort of “blood
sport.” Allen Steinberg, "The Spirit of Litigation:" Private Prosecution and Criminal Justice in Nineteenth Century
Philadelphia, 20 J. Social History 231 (1986). Nor can vestment of the executive power in the President, U.S. Const.
art. II, § 1, for the same reason.
12
 As Justice Scalia observes, the question has never been legally resolved. 53 But it is hard to
imagine that the “inestimable right ... of invoking the penalties of the law upon those who criminally
or feloniously attack our persons or our property,” 54 would be willingly yielded by an informed
populace, or to identify the constitutional mechanism by which it was divested. But as every lawyer
knows, “Judges know very well how to read the Constitution broadly when they are sympathetic to
the right being asserted [but] when we're none too keen on a particular constitutional guarantee, we
can be equally ingenious in burying language that is incontrovertibly there.” 55
Lather. Rinse. Repeat. As Chief Justice Roberts asserted, “under the Constitution, judges have
power to say what the law is, not what it should be.” 56 But there is not a lot we can do about it within
the confines of law, because they have interpreted the Framers’ primary remedy for judicial
despotism out of existence.

The Murder of Certiorari Review: William Howard Taft Sat on It

When it served the judges’ purposes, the Supreme Court has recognized that federal litigants have
certain rights, such as that to “equal and impartial justice under the law,” Leeper v. Texas, 139 U.S.
462, 468 (1891); United States v. Bajakajian, 524 U.S. at 338 (same), procedural due process, Carey
v. Piphus, 435 U.S. at 267, and to have grievances heard by a fair and independent tribunal, Tumey
v. Ohio, 273 U.S. 510, 523 (1927), and to rely on the published decisions of the courts as
authoritative expositions of what the law is. Moragne v. States Marine Lines, 398 U.S. 375, 403
(1970). These rights are all "conferred, not by legislative grace, but by constitutional guarantee."
Cleveland Board of Education v. Loudermill, 470 U.S. 532, 541 (1985) (internal quotation omitted).
For that reason, the Supreme Court has found that access to federal court must be “adequate,
effective, and meaningful,” Bounds v. Smith, 430 U.S. at 822, declaring that the “very essence of
civil liberty certainly consists in the right of every individual to claim the protection of the laws,
whenever he receives an injury [and that] one of the first duties of government is to afford that
protection.” Marbury v. Madison, 5 U. S. at 163 (emphasis added).
Back when the Supreme Court still pretended to be a court of law, they declared that courts "are
bound to proceed to judgment, and to afford redress to suitors before them, in every case to which
their jurisdiction extends," Hyde v. Stone, 61 U.S. 170, 176 (1857), the existence of jurisdiction
"creates an implication of duty to exercise it, and that its exercise may be onerous does not militate
against that implication." Mondou v. New York, N.H. & H.R. Co., 223 U.S. 1, 58 (1912), and that
[w]e 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.” Cohens v. Virginia,
19 U.S. 264, 387 (1821) (emphasis added).
“Treason to the constitution.” Strong words, from the brilliant and ruthlessly rational Chief
Justice Marshall. It is the Government’s job to figure out how it is to discharge that duty and, most

53
See, Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787, 816 and n. 2 (1987) (Scalia, J., concurring in
part) (acknowledging this).
54
Blyew v. United States, 80 U.S. 581, 598 (1872) (Bradley, J., dissenting)
55
Silveira v. Lockyer, 328 F. 3d 567, 568 (9th Cir. 2003) (Kozinski, J., dissenting from denial of rehearing en banc).
56
Obergefell v. Hodges, No. 14-556, 576 U.S. __ (2015) (Roberts, C.J., dissenting) (slip op., at 2).

13
emphatically, not the litigant’s problem. If there is a mandate more imperative than Learned Hand’s
First Commandment—“Thou shalt not ration justice”57—it is not at all apparent.
Given that the Framers had recognized the ancient right to “equal and impartial justice under the
law,” and incorporated legal procedures intended to preserve it in perpetuity, the question becomes
one of whether Congress, by virtue of passing a mere statute, could divest the American people of
this right. Chief Justice William Howard Taft, whose appetite for power exceeded that of food,
came up with.The Judges’ Bill, 43 Stat. 936 (Feb. 13, 1925). Fittingly, it was enacted on Friday the
13th, and it has resulted in a ninety-five-year run of bad luck for litigants victimized by judicial bias,
sloth, and caprice.
The statute (and its successors) is too long to recite here, but what the weapon Taft used to kill
the Constitution left the following statutory gunpowder residue:
Cases in the courts of appeals may be reviewed by the Supreme Court by the following
methods:
(1) By writ of certiorari granted upon the petition of any party to any civil or criminal case,
before or after rendition of judgment or decree.... [28 U.S.C. § 1254(a)(1)]
Final judgments or decrees rendered by the highest court of a State in which a decision could
be had, may be reviewed by the Supreme Court by writ of certiorari where the validity of
a treaty or statute of the United States is drawn in question or where the validity of a statute
of any State is drawn in question on the ground of its being repugnant to the Constitution,
treaties, or laws of the United States... [28 U.S.C. § 1257(a)]
The critical operative phrases of course, are “may be reviewed” and “by writ of certiorari.” At
common law, certiorari has the same effect as a writ of error, demanding supervision. At common
law, certiorari is a supervisory writ, apprising a superior court of “jurisdictional error, failure to
observe some applicable requirement of procedural fairness, fraud and ‘error of law on the face of
the record.’” Craig v South Australia (1995) 184 CLR 163, 175 (H.C. Austl.) (citations omitted).
“The underlying policy is that all inferior courts and authorities have only limited jurisdiction or
powers and must be kept within their legal bounds. This is the concern of the Crown, for the sake
of orderly administration of justice, but it is a private complaint which sets the Crown in motion.”
Surya Dev Rai v. Ram Chander Rai, (2003) 6 SCC 675 (India) (emphasis added). As inferior
tribunals do not have colorable authority to defy the published dictates of our Supreme Court, e.g.,
United States v. Ruhe, 191 F. 3d at 388 (4th Cir.), whenever they did so, certiorari is the proper
remedy at common law.58 Conversely, if a question before the Court is one of first impression, as it
is here, it falls under the ambit of its appellate jurisdiction. And as these are two radically distinct
functions, the decision below raises two discrete questions:

57
Learned Hand, Speech (to The New York Legal Aid Society), Feb. 16, 1951, as reprinted in, The Yale Book of
Quotations 336 (Fred R. Shapiro, ed., 2006).
58
The traditional writ of error is a post-judgment remedy.

14
 Does the appellant have a constitutional right to review of a matter of first impression in an
inferior court, resolution of a split between courts, or reconsideration of a decision?
Does the appellant have a constitutional right to certiorari review of an inferior appellate
court decision in irreconcilable conflict with the binding precedent of that Circuit?
Article III, § 2, cl. 2 of the Constitution provides: “In all Cases affecting Ambassadors, other
public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall
have original Jurisdiction. In all the other Cases before mentioned, 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.” Ergo, whereas the Supreme Court’s original jurisdiction cannot be
divested from it absent a constitutional amendment, Congress could literally divest the Supreme
Court of ALL of its appellate jurisdiction via statute, see Ex parte McCardle, 74 U.S. 506 (1868),
creating a hodge-podge of courts with supreme authority in their own unique bailiwicks. What they
can’t do, however, is deprive an aggrieved litigant of any national forum where the question for
review is decided once and for all and for everyone, as that would deprive litigants of the Fifth
Amendment due process right to "equal and impartial justice under the law." Leeper, supra. As the
intention of the Bill of Rights was to “prevent misconstruction or abuse of its powers,” and the Fifth
(and, Fourteenth) Amerndments are restrictive clauses, Congress has no authority to slam the
courthouse doors in the faces of justly-aggrieved litigants. Ergo, Congress cannot grant the Supreme
Court the power to ration justice as it sees fit. At least with respect to appellate review, The Judges’
Bill is unconstitutional.
This is even more true with respect to common law certiorari review. In a lecture on the nature
of courts, Justice (Professor) James Wilson—the literal author of Article III—explains why this is
true, and a supreme court is an essential feature of any rational system of jurisprudence:
In every judicial department, well arranged and well organized, there should be a regular,
progressive, gradation of jurisdiction; and one supreme tribunal should superintend and
govern all the others.
An arrangement in this manner is proper for two reasons. 1. The supreme tribunal pro-
duces and preserves a uniformity of decision through the whole judicial system. 2. It
confines and supports every inferior court within the limits of its just jurisdiction.
If no superintending tribunal of this nature were established, different courts might adopt
different and even contradictory rules of decision; and the distractions, springing from
these different and contradictory rules, would be without remedy and without end. Oppo-
site determinations of the same question, in different courts, would be equally final and
irreversible.59
This power is found in Section 1 of Article III, distinguishing the Supreme Court from inferior
courts, including state supreme courts, U.S. Const. art. VI, cl. 2. The right of access to the courts is
a sine qua non of any civilized society. As Justice Moody wrote a century ago: “The right to sue

59
2 The Works of James Wilson 149-50 (James D. Andrews ed., 1896) (emphasis added). Wilson sat on the Committee
of Detail during the Philadelphia Convention; the Article was literally written in his hand.

15
and defend in the courts is the alternative of force ... it is the right conservative of all other rights,
[and] ... one of the highest and most essential privileges of citizenship.” Chambers v. Baltimore &
Ohio R. Co., 207 U.S. 142, 148 (1907); cf., Scott v. Sandford, 60 U.S. 393 (1857) (property has no
right of access to the courts). “It is a monstrous absurdity in a well organized government, that there
should be no remedy, although a clear and undeniable right should be shown to exist.” Kendall v.
United States, 37 U.S. 524, 624 (1838).
If certiorari review is not available as a matter of right, there are no alternative remedies available
to the injured citizen. Cf., Bradley v. Fisher, 80 U.S. 335, 354 (1872). “If ... all officials exercising
discretion were exempt from personal liability, a suit under the Constitution could provide no redress
to the injured citizen, nor would it in any degree deter federal officials from committing
constitutional wrongs.” Butz v. Economou, 438 US 478, 505 (1978). Ergo, judicial immunity in tort
is no longer available.
The math is so straightforward that even Lawrence Tribe could do it. 60 As a citizen, you have a
right to the benefit of the same rule of law as your neighbor down the street, and government has a
duty to provide it. And as Congress quite literally has no constitutional authority to deprive our one
supreme Court of the power and duty of supervision over inferior courts—including state supreme
courts, U.S. Const. art. VI, cl. 2—then a fortiori, to the extent that it purports to relieve the Court of
that essential duty, The Judges Bill is spectacularly unconstitutional on this score.
If there is even a colorable argument for the proposition that the Constitution grants judges
authority to ration justice, I remain blissfully unaware of it. We all have the right to “equal and
impartial justice under the law,” Leeper, supra, and government, a concomitant duty to provide it.
Marbury, supra. And since the only governmental agents who can provide it are the Justices, they
have an obligation to discharge that duty.
The statutory basis for such a claim is 28 U.S.C. § 1361, which provides: "[t]he district courts
shall have original jurisdiction of any action in the nature of mandamus to compel an officer or
employee of the United States or any agency thereof to perform a duty owed to the plaintiff." A
judge’s willful failure to discharge that duty is "treason to the Constitution." Cohens, supra. As the
Justices owed the aggrieved citizen a duty to provide relief in the nature in question, a lower federal
court has clear legal authority to issue an order to that effect, as "literally, the language of § 1361
would allow a district court to issue mandamus directly against the Justices of the Supreme Court
themselves." Panko v. Rodak, 606 F.2d 168, 171 & n. 6 (7th Cir. 1979). And Congress said what
they meant. As the statute and duty are clear, an appropriate order must issue from the court below,
and it is our courts’ duty to order it in no uncertain terms.
But in the dystopian Third World ”judicial“ system John Roberts has foisted upon us, that and a
dollar won‘t get you a latte at Starbucks. Trust me. I’ve tried.

60
L. Tribe, Trial by Mathematics: Precision and Ritual in the Legal Process, 84 Harv. L. Rev. 1329 (1971).
16
Immolating the Antidote to Judicial Tyranny: Good Behavior Tenure

Sic semper tyrannis. Thus always to tyrants. Even a casual glance at Virginia’s official state seal
illustrates the problem scire facias endeavors to remedy. On the one hand, the right to kill a tyrant
in defense of one’s life and liberties is absolute and predates Magna Carta, and there is no exception
for federal judges.61 On the other hand, an advanced society cannot function without a competent
and professional judiciary, and no one in his or her right mind would accept a lifetime sinecure if
that ‘lifetime’ were measured in weeks. Thus, a rational system of jurisprudence must be able to
protect judges from undue influence and the citizen, from abuses of the judicial office.
As long as there have been judges, there have been corrupt ones, and a need to restrain them. The
solutions of antiquity were often brutal: the Persian vassal lord Cambyses had a particularly corrupt
judge literally turned into upholstery, Herodotus, Histories, Bk. V, § 26 (~430 BCE), and King
Alfred of Saxony reportedly hung forty-four judges in one year. Peter Hughes, Georgicum: Or, A
Supplement to the Mirror of Justices 6 (1716). While the British hung their fair share of judges over
the years—Chief Justice Robert Tresilian was hanged for issuance of executive-friendly
decisions 62—their ultimate solution to the problem was to take as much power as possible out of the

61
Before Magna Carta, Bishop John of Salisbury asserted that "[t]o kill a tyrant is not merely lawful, but right and just
... the law rightly takes arms against him who disarms the laws, and the public power rages in fury against him who
strives to bring to nought the public force." John of Salisbury, Policraticus, Bk. iii, ch. 15, reprinted in, The
Statesman’s Book of John of Salisbury lxxiii (John Dickenson trans., Russell & Russell, 1963) (1159). Aquinas
concurred, noting that a violent response to tyranny is not just permissible, but predictable: "[M]en remove themselves
from a tyrant as from cruel beasts, and to be subject to a tyrant seems the same as to be mauled by a cruel animal."
Thomas Aquinas, De Regimine Principum, in St. Thomas Aquinas: Political Writings 15 (R.W. Dyson trans.,
Cambridge Univ. Press 2002) (1267).
62
As Baron John Campbell observed, “his fate seems to have excited little compassion, for he had shown himself ready
to mete out like injustice to others, and he had extra-judicially pronounced opinions which, if acted upon, would have
17
hands of judges, and hold judges personally accountable for acts of misconduct. An integral part of
this scheme was the grant of judicial sinecures quamdiu se bene gesserint, Act of Settlement [1701],
12 & 13 Will. 3, c. 2, §3 (in plain English, “during good behavior”).
It was an elegant solution. In advocacy of the proposed Constitution to the people of New York,
Framer Alexander Hamilton opined that “the standard of good behavior for the continuance in office
of the judicial magistracy, ... [and] the best expedient which can be devised in any government, to
secure a steady, upright, and impartial administration of the laws.” The Federalist No. 87, at 437.
But they never actually had to define it, because Coke and Blackstone had done such a wonderful
job of doing it for them.
While the King “could do no wrong,” his courtiers often did. Accordingly, the common law
developed a remarkably effective system for policing officials who abused the power of the mag-
istracy. If the Crown owed you a duty, you had a remedy in mandamus. If you were victimized by
crime, you prosecuted the perpetrator yourself. If you were wrongfully imprisoned, you could
challenge the imprisonment through a writ of habeas corpus. And if a public official with a life-
time sinecure abused his authority, you removed him from office via the writ of scire facias.
Although most agents of the Crown served "at the pleasure of the King," some public officials
in England were granted a freehold in their offices, conditioned on "good behavior." See e.g., 4
Coke, Inst. of the Laws of England 117 (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).
At common law, good behavior tenure was originally enforced by the sovereign. But as this
power concerned only the interests of his subjects, and the King exercised it only in parens patriae,
he was bound by law to allow the use of it to any subject interested. Blackstone explains:
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.63
By making a public official subject to removal for violating it, the condition of good behavior
defined the powers of a given office. Coke listed three grounds for forfeiture of good behavior
tenure: abuse of office, nonuse of office, and a willful refusal to exercise an office. 64 Blackstone

been for ever fatal to public liberty.” John Campbell, 1 The Lives of the Lord Chancellors and Keepers of the Great Seal
of England 294 (2d ed. 1846).
63
3 Blackstone, Commentaries * 260-61 (emphasis added); see, United States v. American Bell Tel. Co., 28 U.S. 315,
360 (1888) (explaining the process).
64
R. v. Bailiffs of Ipswich [1706] 91 Eng. Rep. 378 (K.B.) (corporate recorder forfeited his office for a 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)
18
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." 65 Whereas an English judge could be
removed by an address of both houses of Parliament, Act of Settlement, supra, Harvard’s legendary
Raoul Berger noted that "the decided preponderance of authority, Lord Chancellor Erskine,
Holdsworth, and others, consider that this provision did not exclude other means of [judicial]
removal, that is, by impeachment, scire facias, or criminal conviction." 66 In short, a duty to be fair
and impartial was an integral part of an 18th-century English judge’s job description, as was the
duty to hear every case properly brought before his court. But perhaps more importantly, the "abuse
of office" condition seriously curtails a judge’s freedom of action.
“Good behaviour.” Those two words packed a punch. As it is hard to imagine how a phrase
intended as mere surplusage would elicit Hamilton’s fulsome praise, and it “cannot be presumed
that any clause in the Constitution is intended to be without effect, and therefore such construction
is inadmissible unless the words require it," Marbury, 5 U.S. at 174, the Framers plainly intended
to grant Article III judges sinecures “during good behavior,” and for that condition to mean
something.
And everyone understood what that meant. In the course of debate at the Virginia Ratification
Convention, Madison explained to his colleagues that 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). This axiom was accepted by Judge Pendleton, Chief Justice
Marshall, and Edmund Randolph, Id. at 546, 558-59, 573, and Marshall applied it in United States
v. Wilson, where he found that the scope of the President’s pardon power was determined by
reference to English law:
The Constitution gives to the President, in general terms, "the power to grant reprieves and
pardons for offenses against the United States." As this power had been exercised from time
immemorial by the executive of that nation whose language is our language, and to whose
judicial institutions ours bear a close resemblance, we adopt their principles respecting the
operation and effect of a pardon, and look into their books for the rules pre- scribing the
manner in which it is to be used by the person who would avail himself of it. 67
Good behavior tenure, and use of the 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 abuses of office
since the reign of Edward VI. 2&3 Edw. 6, c. 8, §13 (ca. 1540). A quarter-millenium may not be
time immemorial, but it is the next closest thing.
In Britain, the Act of Settlement established the rights of judges and litigants. Judges enjoyed
lifetime sinecures (as opposed to serving at the King’s pleasure), but Parliament could remove a

65
4 Blackstone, Commentaries at 140-41.
66
Raoul Berger, Impeachment: The Constitutional Problems 157 (Harvard U. Pr. 1974) (footnote omitted; emphasis
added).
67
United States v. Wilson, 32 U.S. 150, 160 (1833)
19
judge from the bench for any reason or no reason at all. 68 As good behavior tenure is illusory if
Parliament could remove you from office just because, it follows that Parliament had something
else in mind. Hence, the only thing Parliament could have meant was that the subject’s common
law right to remove a miscreant official from office for cause was to be applied to judges. And as
Justice Scalia contends, Parliament’s good behavior clause is instructive as to how we should
interpret our own:
[T]he foreign law I think is relevant is very old foreign law—[laughter]—very old English
law. Because what is meant by the terms of the Federal constitution is dependent upon what
Englishmen in 1791 considered to be due process of law, or what they considered to be cruel
and unusual punishment. So I use foreign law all the time -- but it is all very old English
law.69
One cannot help but marvel at the aplomb with which Defendant Scalia fashions his own pro-
fessional noose. What is meant by the terms of the Federal constitution is dependent upon what
Englishmen in 1791 considered to be good behavior tenure, because the term has no discernible
meaning apart from English law.70 About a decade after its ratification, Senator David Stone of
North Carolina stated the obvious during floor debate:
To what source, then, shall we resort for a knowledge of what constitutes this thing called
misbehavior in office? The Constitution did not intend that a circumstance, as a tenure by
which the judges hold their offices, should be incapable of being ascertained. Their mis-
behavior certainly is not an impeachable offence; still it is the ground by which the judges
are to be removed from office. The process of impeachment, therefore, cannot be the
only one by which the judges may be removed from office, under and according to the
Constitution. I take it, therefore, to be a thing undeniable, that there resides some- where in
the government a power that shall amount to define misbehavior in office by the judges, and
to remove them from office for the same without impeachment. 71
Senator Hemphill’s response is instructive, in the sense that it recounted the Framers’ intention that
“the words in the Constitution rendered the judges independent of both the other branches of
68
Parliament’s power to remove a judge via address has only been used once in three centuries, in the case of Sir
Jonah Barrington, allegedly for embezzling funds owing to litigants. “Judges and Parliament,” Judiciary of England
and Wales (website; undated), at *ttp://www.judiciary.gov.uk/about-the-judiciary /the-judiciary-in-detail/jud-acc-
ind/judges-and-parliament (last visited Apr. 9, 2013; copy on file).
69
Antonin Scalia (Associate Justice, United States Supreme Court), "International Law in American Courts," Speech
(to the American Enterprise Institute), Feb. 21, 2006 (copy of transcript on file).
70
Virtually all debate in the federal and state constitutional conventions on the topic concerned whether Congress should
retain power to remove Article III judges via address. For example, in the national Convention, Gouverneur Morris said
that it was "a contradiction in terms. to say that the judges should hold their offices during good behavior, and yet be
removeable without a trial [and] it was fundamentally wrong to subject judges to so arbitrary an authority." 5 Elliot’s
481 (remarks of Gov. Morris).
71
4 Elliot’ s 443-44 (remarks of Sen. Stone (R-NC), dated Jan. 13, 1802 (emphasis added, italics in original). There was
no official transcription of Congressional debates from that era; the Annals is a summary of proceedings, compiled
largely from newspaper accounts.

20
government.” 5 Elliot’s 444 (remarks of Sen. Hemphill (F-PA). As the right to decide what is or is
not “good behavior” sua sponte is a de facto power of address, it does not appear to have been the
intent of the Framers to entrust that power to Congress.
But this begs the natural question resolved by their brethren in Britain: Who has the power to
enforce good behavior tenure? Justice Frankfurter reminds us that we should read the law “with the
saving grace of common sense.” Bell v. United States, 349 U.S. 81, 83 (1955). As Professor Berger
writes, “[w]hen an office held ‘during good behavior’ is terminated by the grantee’s mis- behavior,
there must be an ‘incident’ power to ‘carry the law into execution’ if ‘good behavior’ is not to be an
impotent formula.” Raoul Berger, Impeachment: The Constitutional Problems 132, 2d ed. (Harvard
U. Press 1999). Such a power must exist, 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.” Jarrolt v. Moberly, 103 U.S. 580, 586 (1880).
The power to punish judicial misbehavior must lie somewhere. The authority of Congress to
remove any public official from office was expressly limited to impeachment and “Conviction of,
Treason, Bribery, or other high Crimes and Misdemeanors,” U.S. Const. art. II, § 4, the executive
Power only extends to prosecution of criminal offenses, and the judicial Power extends only to the
trial of cases and controversies. Ergo, 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 is the
interpretation of the Constitution most consistent with the British formulation of good behavior
tenure, this is the one that the Framers must have meant. It is also the one Congress has applied on
a consistent basis for over two centuries. The remedies can be applied separately, and carry different
punishments: Whereas the impeached official suffers “disqualification to hold and enjoy any Office
of honor, Trust or Profit under the United States,” U.S. Const. art. I, § 3, cl. 7, a judge who violates
the condition of good behavior could still run for Congress, where a lack of any semblance of
personal honor or integrity is remarkably pedestrian.
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 Geyh, When Courts and Congress Collide: The Struggle for
Control of America’ s Courts 160 (U. Mich. Press 2008). Specifically, the congressional com- mittee
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. Other cases involved the impeachment of
Samuel Chase, who single-handedly emasculated the Seventh Amendment. While the process of
impeachment has an inescapable and odious component of political vengeance, both parties in that
dispute agreed that a judge is removable for misbehavior under the ‘good behavior’ standard, 3
Hinds’ Precedents 765 (G.P.O., 1907) (stmt. of Luther Martin, arguing that Justice Chase could not
be impeached), with the only question begged being who has legal authority to do it
The courts haven’t officially interred this remedy; they merely act as though it doesn’t exist. And
they have done so through the trick of legal legerdemain known as the “unpublished,” or to be more
accurate, non-precedential opinion. It was the next logical step in what Judge Bork calls our judicial
coup d’etat.

21
Unpublished Opinions: The Death Blow to the Rule of Law
There is no position which depends on clearer principles, than that every act of a dele-gated
authority, contrary to the tenor of the commission under which it is exercised, is void. No
legislative act therefore contrary to the constitution can be valid. To deny this would be to
affirm that the deputy is greater than his principal; that the servant is above his master; that
the representatives of the people are superior to the people themselves; that men acting by
virtue of powers may do not only what their powers do not authorise, but what they forbid.
--Alexander Hamilton
At the risk of stating the obvious, Article III judges do not enjoy a constitutional license to vent
their spleen on defenseless litigants, issue ukases in open defiance of the law of the land, or grant
themselves permission to do so with impunity. But little niceties like the law do not restrain our
black-robed masters.
When I claimed that our courts obliterated the rule of law in 2000, readers could be forgiven if
their thoughts raced to Bush v. Gore, 531 U.S. 98 (2000), where “the Gang of Five” selected our
President, jettisoning over a century of personal states’ rights jurisprudence in their rush to secure
their personal legacy. Clarence Thomas is the only active participant in that crime left, but he has
long since decided that the law just doesn’t apply to him.

ALL LITIGANTS ARE EQUAL BEFORE THE LAW

BUT SOME LITIGANTS ARE MORE EQUAL THAN OTHERS
If I am confirmed as a district court judge, the litigants in my courtroom could rest assured
that I will treat everyone with patience, dignity, and respect no matter what his status or
station in life. I will encourage all litigants to present their arguments and evidence and
establish an environment in which everyone is afforded a full and fair opportunity to be
heard.
—Ketanji Brown Jackson 72
Federal judges are inveterate sociopaths, with all the moral fiber and conscience of a Donald
Trump. They say as little as possible while under oath in the Senate Judiciary Committee, and what
little they do say is unabashed perjury. Jackson distinguished herself by declaring that the Bill of
Rights is not enforceable because the Framers didn’t enact an Eleventh Amendment that says, “we
really, really, REALLY DO mean it” (the actual, jaw-dropping quote: “In addition, the Bill of Rights
clearly does not contain any congressional mandate expressly waiving sovereign immunity.” Smith
v. Scalia, No. 13-cv-0298-KBJ (D.C. Dist. May 26, 2014) (slip op. at 17-18); cf., Jacobs v. United
States, 290 U.S. 13, 16 (1933) (Fifth Amendment “takings” clause implicitly waives immunity). As
a black woman from Harvard Law, she is pure Affirmative Action Gold; with pronouncements like
that, she literally has no business being on any bench. But when your friend is Barack Obama....
In law school, you are taught that it is the Supreme Court’s "prerogative alone to overrule one
of its precedents,” State Oil Co. v. Khan, 522 U. S. 3, 20 (1997), and a lower court’s refusal to follow

72
Response of Ketanji B. Jackson, Nominee to be United States District Judge for the District of Columbia, to the
Written Questions of Senator Amy Klobuchar (undated) at 1 (copy on file).

22
one of its controlling decisions, “clear error.” Roper v. Simmons, 543 U.S. 551, 594 (2005)
(O’Connor, J., dissenting). But in the real world, even the lowliest state trial judge uses its solemn
pronouncements as birdcage liner. And two cases—Anastasoff v. United States, 235 F.3d 1054
(2000) (en banc) and Hart v. Massanari, 266 F.3d 1155 (9th Cir. 2001)--officially unofficially
green-lighted the practice. “Caselaw on point is the law,” Hart at 1170 ... except when a judge
like Ketanji Brown Jackson suddenly decides that it isn’t.73
The late, great Judge Arnold of the Eighth Circuit set the legal world on fire by writing in his
landmark Anastasoff decision that
in the late eighteenth century, the doctrine of precedent was well-established in legal practice
(despite the absence of a reporting system), regarded as an immemorial custom, and valued
for its role in past struggles for liberty. The duty of courts to follow their prior decisions was
understood to derive from the nature of the judicial power itself and to separate it from a
dangerous union with the legislative power. The statements of the Framers indicate an
understanding and acceptance of these principles. We conclude therefore that, as the Framers
intended, the doctrine of precedent limits the "judicial power" delegated to the courts in
Article III. No less an authority than Justice (Professor) Joseph Story is in accord. See his
Commentaries on the Constitution of the United States §§ 377-78 (1833):
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. 74
Judge Arnold’s unassailable opinion inspired a hundred law review articles and pissed off every
other federal judge in America. Judges had been dispensing their own brand of ad hoc, ex post facto
“law” for decades, and burying the evidence of their lawless acts in unpublished opinions. And they
didn’t join the bench to be mere judges. They wanted to be gods.

73
In research stretching back four centuries, condemnation of the practice was both emphatic and uniform; I have
literally been unable to find a single authority in support of the proposition. Cf., e.g., State Oil Co. v. Khan, 522 U. S.
3, 20 (1997) (Court’s "prerogative alone to overrule one of its precedents,"); James B. Beam Distilling Co. v. Georgia,
501 U.S. 529, 544, 549 (1991) (Scalia, J., concurring; admission by party-opponent); In re Smith, 10 F.3d 723, 734
(10th Cir. 1993) ("We are bound by the precedent of prior panels absent en banc reconsideration or a superseding
contrary decision by the Supreme Court."), United States v. Meyers, 200 F.3d 715, 720 (10th Cir. 2000); Taylor v. Solis,
571 F.3d 1313, 2009.CDC.0000148, ¶ 58 (D.C.Cir. 2009) ("Contrary to binding precedent, however, the [lower] court
converts this objective standard into one that is subjective, Op. at 7, and so errs.").
74
Anastasoff v. United States, 223 F.3d 898, 903-04, vacated as moot on reh'g en banc, 235 F.3d 1054 (8th Cir. 2000).

23
 Judge Arnold’s colleagues had kittens, and forced him to recant. Sitting en banc, they forced
him to write an opinion vacating his earlier opinion as moot, even though it really wasn’t. At that
point, the disgraced Judge Alex Kozinski of the Ninth Circuit stepped into the breach. And he got
creative:
We believe that Anastasoff overstates the case. Rules that empower courts of appeals to issue
nonprecedential decisions do not cut those courts free from all legal rules and precedents; if
they did, we might find cause for alarm. But such rules have a much more limited effect:
They allow panels of the courts of appeals to determine whether future panels, as well as
judges of the inferior courts of the circuit, will be bound by particular rulings. This is hardly
the same as turning our back on all precedents, or on the concept of precedent altogether.
Rather, it is an effort to deal with precedent in the context of a modern legal system, which
has evolved considerably since the early days of common law, and even since the time the
Constitution was adopted. …
... we question whether the "judicial Power" clause contains any limitation at all, separate
from the specific limitations of Article III and other parts of the Constitution. …
… as Professor William Nelson has convincingly demonstrated, colonial juries "usually
possessed the power to find both law and fact in the cases in which they sat," and were not
bound to follow the instructions given to them by judges. See William E. Nelson, Marbury
v. Madison: The Origins and Legacy of Judicial Review 16-17 (2000). Today, of course, we
would consider it unfair — probably unconstitutional — to allow juries to make up the law
as they go along.
You just can’t make this stuff up. If it would be unconstitutional for juries to make up the law as
they go along, then a fortiori, it would be unconstitutional for JUDGES to make up the law as they
go along.
Which is precisely what they do. Every. Damn. Day.
It is not that Kozinski—Brett Kavanaugh’s mentor, and widely regarded as one of the brightest
men on the bench--wrote that opinion on the fly.75 While 95% of his output could be described as
criminally negligent, that is also true with all federal appellate judges. 76 But he was so blinded by
selfishness that he didn’t see the contradiction in his argument.

75
Kozinski wasted most of his time writing as many as fifty drafts of a single opinion, and admitted to writing opinions
“precisely for the purpose of getting into” casebooks. Emily Bazelon, The Big Kozinski, Legal Affairs, Jan-Feb. 2004.
Judge Kozinski resigned amidst credible charges that he had sexually harassed female law clerks; like Sergeant Schultz,
Kavanaugh “saw nothing! Nothing!”
76
E.g., Alex Kozinski, Letter (to Judge Samuel A. Alito, Jr.), Jan. 16, 2004 at 5 (~150 rulings in a two-day session);
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); Stephen Breyer, Administering Justice in the First
Circuit, 24 Suffolk U. L. Rev. 29, 32-33 (1990) (typical appeal “takes only a little of their time”). As Judge
Murnaghan of the Fourth Circuit openly admitted, “it is well known that judges may put considerably less effort into
opinions that they do not intend to publish. Because these opinions will not be binding precedent in any court, a judge
may be less careful about his legal analysis, especially when dealing with a novel issue of law. Wilson v. Layne, 141
F.3d 111, 124 n. 6 (4th Cir. 1998) (Murnaghan, J., dissenting).

24
 If Judge Kozinski had bothered to do a little more research (or at least, had read Federalist 83),
he would have learned that the ability of the jury to go rogue was, in the judgment of Hamilton, a
feature, not a bug.
On Judge Richard Kopf’s Hercules and the Umpire blog (Judge Gertner will remember), a wag
calling himself “The Absinthe-Minded Perfesser” isolated the problem so well, I can’t hope to
improve on it:
I suspect that the American people have finally given up on “the childish fiction” (John
Austin) of the judge as honest arbiter of disputes and to be blunt, there isn’t anyone who has
reviewed the Judge’s recommended reading list who can say with a straight face that they’re
wrong.
Imagine that a pro se civil rights plaintiff confronts Richard Arnold in the beyond, asking
him why he handed down a horse**** decision in obvious conflict with Supreme Court
precedent — which destroyed his life. The ever-candid Judge Arnold replies:
“In my defense, I only spent seven minutes considering your appeal (Arnold). But
don’t feel like we singled you out. We know that we have a high error rate (Posner),
and we train trial court judges to get rid of all cases like yours (Gertner). We know
that trial courts routinely fabricate facts and misrepresent the controlling law
(Posner, Silberman, Llewellyn … and for that matter, just about everyone), but no
one on the bench really gave two s****. After all, what were unjustly-wronged
litigants going to do? We had life tenure (Scalia).
I tried to change the system (Anastasoff), but I was out-voted (Anastasoff, en banc).
We were that sloppy with virtually all the appeals we decided. We didn’t bother with
reading the opinions we delivered because they were “unpublished,” which meant
that we only screwed one person. We certainly didn’t write them, and Heaven forfend
that we should ever do anything as mundane as read briefs. Even trial court judges
don’t bother (Kopf), because we judges had far more important things to do, like
surfing porn sites in chambers (MISTER Nottingham, formerly of the District of
Colorado; Judge Kozinski [sanctioned for it]).
We were busy men. We had meetings to attend, junkets to go to, speeches to give,
classes to teach (McConnell, who moonlighted by teaching at Harvard and Stanford
while serving on the Tenth Circuit). You were there to provide us with an
“intellectual feast” (Bork), and if you offered us broccoli, we were free to decline.
You see, Supreme Court Justices (they insisted on the last word being capitalized)
were even more important than we were, and were too engrossed in the writing of
autobiographies (Thomas), books (e.g., Scalia, Breyer, O’Connor), law review
articles (e.g., Scalia, Stevens), refereeing moot courts, greeting dignitaries (Roberts),
and delivering pathetic speeches half-way around the world that no one could
stomach if we were law profs — even when the Court was in session! (Scalia,
especially) — to bother with a task as mundane as checking our work. They were
interested in issues more important than YOUR rights (e.g., the constitutionally-
permissible length of a Muslim prisoner’s beard. Seriously.).
25
 I mean, who do you think you were? A citizen? And were you so arrogant as to think
that you had rights, little man? No, we judges were your masters and you, our slaves
(James Madison). The Constitution certainly didn’t grant us that power, but we took
it anyway.”
People know bull**** when they smell it, and when judges issue embarrassingly absurd
opinions like this one (King v. McCree, No. 13-2033 (6th Cir. Jul. 21, 2014), at [link
broken]) often enough, it attracts scorn like a light attracts moths. People could cut judges a
little slack if they made honest mistakes in good faith, but when a judge is having sex with
a party to a case, you would think that he would know enough not to preside over it, and that
the law would be rational enough to hold that judge personally liable in tort for any injury
resulting from his actions. If the Framers’ Constitution still existed — our judges have
rewritten it to the point where it is no longer recognizable as such (Scalia, in dissent in
Umbehr) — it would. But our judges have invented a doctrine of absolute judicial immunity
from whole cloth (Floyd and Barker, in the Star Chamber), employing a sophistry so bizarre,
even Heller (Catch-22) wouldn’t try using it:
You have been injured by the misconduct of a judge. We have to deny you redress.
This is necessary because we have to protect your interests by protecting the judges,
so that they in turn can protect your interests without fear of apprehension.
Grisham couldn’t make this up; his editors wouldn’t let him. As Tom Clancy put it, the
difference between fiction and reality is that fiction has to make sense.
Hercules is a good analogy, Judge Kopf. Cleaning up this mess makes the Augean Stables
look like light housework.77
If the American people got full wind of the “stench” Justice Sotomayor referred to during oral
argument on December 1, they would surround the Court with torches and pitchforks. And they
would be entirely within their rights to do so. Or to borrow the adroit prose of Justice Scalia in
Arizona v. United States: “Would the States conceivably have entered into the Union if the
Constitution itself” gave our courts such limitless power78 If the Framers stated explicitly that
the people would exchange arbitrary rule by King George for arbitrary rule by King Judge,
would anyone in their right mind have ratified their Constitution? To even state the case the is
to refute it. The delegates to the Grand Convention would have rushed to the exits in sheer terror.
If a court can rule one way on Tuesday and another way on Thursday, we can just replace our
judges with random number generators. It would a lot more efficient, about as just, and definitely
cheaper.

77
Richard G. Kopf (Senior Judge, District of Nebraska), A honest campaign ad for a judge, Hercules and the Umpire,
Oct. 29, 2014, at https://herculesandtheumpire.com/2014/10/29/a-honest-campaign-ad-for-a-judge/

78
Arizona v. United States, 567 U.S. 387, ___, 132 S.Ct. 2492, 2522 (2012) (Scalia, J., dissenting in part) (bench
statement issued Jun 25, 2012).

26
A. The $$$ultans of $$$lack

Over a century ago, our Supreme Court declared that you have a right to “equal and impartial
justice under the law,” and that this right is “secured by laws operating on all alike, and not sub-
jecting the individual to the arbitrary exercise of the powers of government.”79 But as Judge Edith
Jones of the Fifth Circuit confessed, you have little hope of securing it, because "[t]he American
legal system has been corrupted almost beyond recognition.” 80
And she does not understate the case.
As retired Justice John Paul Stevens admitted, “Supreme Court Justice” is the best part-time job
in the world:

Caldwell v. Texas, 137 U.S. 692, 697-98 (1891). The late Justice Scalia ‘added meat to the bones,’ summarizing
79

Anglo-American jurisprudence in five incisive sentences:

Parents know that children will accept quite readily all sorts of arbitrary substantive dispositions—no
television in the afternoon, or no television in the evening, or even no television at all. But try to let one
brother or sister watch television when the others do not, and you will feel the fury of the fundamental sense
of justice unleashed. The Equal Protection Clause epitomizes justice more than any other provision of the
Constitution. And the trouble with the discretion-conferring approach to judicial law making is that it does
not satisfy this sense of justice very well. When a case is accorded a different disposition from an earlier one,
it is important, if the system of justice is to be respected, not only that the later case be different, but that it be
seen to be so.

Antonin Scalia, The Rule of Law as a Law of Rules, 56 U. Chi. L. Rev. 1175, 1178 (1989).

80Geraldine Hawkins, American Legal System Is Corrupt Beyond Recognition, Judge Tells Harvard Law School,
MassNews.com, March 7, 2003, available at http://www.massnews.com/2003_Editions/3_March/030703_mn_-
american_legal_system_corrupt.shtml.

27
 Seated in a comfortable chair on a stage at the University of Florida recently, Stevens
betrayed no sign that he is preparing to retire, remarking only that if the court had maintained
the same heavy caseload today it had when he became a justice in 1975, "I would have
resigned 10 years ago.”81
To say that the Justices are not overworked is an understatement. In a twenty-year period, their
output declined by about 50% (from an average of 155 signed opinions for 1984-85 to about 80 in
2004-06), despite the fact that the annual number of petitions for certiorari nearly doubled during
that time.82 And they have not discovered diligence: in 2020, the Court only issued 65 opinions.83
Judge Posner authors 90 himself, and still finds plenty of time to moonlight. 84
The Justices always seem to have plenty of time to churn out mindless autobiographies ,85 rub
elbows with the Queen while on our dime, 86 and even officiate moot court.87 But no one parlayed
his position and the celebrity attending it into a way to travel the world in resplendent fashion on
other people’s money quite like Antonin Scalia. Scalia’s travelogue looks a lot like most people’s
bucket lists: Berlin. Warsaw. Rome. London. Zurich. Lisbon. Jerusalem. Istanbul. Tokyo.
Copenhagen. Reykjavik. Dublin. Lima. Innsbruck. Melbourne. Banff. Fairbanks. Beaver Creek.
Indian Wells. Jackson Hole. Honolulu. 88 And even while the Court was in session, and we were
paying his salary, Scalia took a nine-day vacation halfway around the world. 89
While our Justices appear to be for sale, they don’t come cheap. The steady stream of thinly-
disguised bribes—developer Harlan Crow is that generous with all of his friends, right?— aimed at
Justice Thomas includes a $500,000 cash payment to Thomas’ wife, an undisclosed number of trips
on Crow’s yacht and private jet, a $175,000 library wing named in his honor, several million to turn
the cannery his mother once worked for into a museum—a project reportedly initiated by Thomas

81 Justice Stevens Shows No Signs Of Quitting, Associated Press, Nov. 29, 2008.

David R. Stras, The Supreme Court’s Gatekeepers: The Role of Law Clerks in the Certiorari Process, 85 Tex. L.
82

Rev. 947, 979, 982, 987 (2007).

83
Merits cases by vote split, SCOTUSblog, at https://www.scotusblog.com/statistics/ (last visited Dec. 12, 2021;
screenshot retained).
84 Ronald K.L. Collins, Posner on Case Workloads & Making Judges Work Harder, Concurring Opinions (blog), Dec.

24, 2014 (available at http://concurringopinions.com/archives/2014/12/posner-oncase-workloads-making- judges-

work-harder.html; his CV is available at http://www.law.uchicago.edu/faculty/posner-r.
85Frank Rich, Nobody Knows the Lynchings He’s Seen, N.Y. Times, Oct. 7, 2007 (in re: Justice Thomas
autobiography, “My Grandfather’s Son”).

Queen Elizabeth II Opens New UK Supreme Court, Assoc. Press, Oct. 17, 2009 (four Justices attended—while the
86

Court was in session).

87 Jessica Martin, Students Argue Before Chief Justice Roberts, The Record (Washington Univ.) Jan. 15, 2007.
88See Antonin Scalia, Forms AO-10 (Financial Disclosure Report for Calendar Years 2003-2009), reprinted at
http://www.judicialwatch.org/judge/scaliaantonin.
89Antonin Scalia, Form AO-10 (for Calendar Year 2004) at 4 (attending conference in Auckland, NZ from Oct. 19-
27, 2004).

28
himself—and the Bible of firebrand Black abolitionist Frederick Douglass, valued at $19,000. 90
Whether it involves attending secretive junkets offered by the Federalist Society, 91 taking a bribe
from a litigant,92 or duck hunting with a litigant during the pendency of a case,93 our Supreme Court
is as compromised as your average Congressman.
Still, the most pernicious form of discrimination occurs at the appellate level.

Show me a pro se litigant, and I’ll show you someone who ran out of money to pay lawyers.
And to not put too fine a spin on it, federal courts treat these unfortunates like black men at a
Woolworth’s lunch counter. According to retired District Judge Nancy Gertner, judges are quite
literally trained on "how you get rid of [pro se civil rights] cases." 94 Judge Mark Bennett of the
Northern District of Iowa earned the nickname “The Terminator” for summarily dismissing pro se

90 Mike McIntire, The Justice and the Magnate, N.Y. Times, Jun. 19, 2011, at A-1.
91 Brian Ross, Supreme Ethics Problem, ABC News, Jan. 23, 2006.
92Specifically, Scalia accepted a ride on Vice-President Cheney’s private jet to go duck hunting. The legal value of a
bribe is its value to the recipient, e.g., United States v. Gorman, 807 F.2d 1299, 1305 (6th Cir. 1986); United States v.
Williams, 705 F.2d 603 (2d Cir. 1983) (business loan to Senator), and a private jet is the ultimate upgrade.
93 Cheney v. United States District Court for the District of Columbia, 541 U.S. 913 (2004) (Scalia, J., in chambers).
94
Nancy Gertner (blog reply), Civil jury trials, summary judgment, employment cases and the Northern District of
Georgia study–preliminary observations, Hercules and the Umpire (blog of Senior Judge Kopf, Dist. of Nebraska),
Oct. 22, 2013, at http://herculesandtheumpire.com/2013/10/22/civil-jurytrials-summary-judgment-employment- cases-
and-the-northern-district-of-georgia-study-preliminary-observations/ (copy on file).

29
employment law cases. 95 Retired Judge Richard Posner recently took Judge David Faber of the
District of Maryland to task for cutting and pasting “his” opinion in a pro se case from the
Government’s brief.96 But the undisputed champion of judicial laziness Judge Robert Blackburn of
the District of Colorado, who routinely shunts pro se cases to magistrates with apparent direc- tions
to get rid of them and then failing to review them, issuing opinions bearing zero objective evidence
that he had performed his statutory duty. 97
Those unfortunates who must fight their own battles out of brute necessity are subject to secret
law that they can neither know nor anticipate. As Justice Stevens noted, “in Justice Ginsburg's lucid
opinion in Exxon Mobil Corp. v. Saudi Basic Industries Corp., 544 U. S. 280 (2005), the Court
finally interred the so-called "Rooker-Feldman doctrine" ... a doctrine that has produced nothing but
mischief for 23 years.”98 However, in reviewing Tenth Circuit’s jurisprudence since Exxon it is
fair to say that while the courts in the District of Colorado seem to be getting the message in their
published opinions,99 they continue to apply this doctrine in unpublished opinions involving pro se
litigants.100 effectivelyt blocking access to federal court when the plaintiff lacked a reasonable
opportunity to litigate claims in state court. This violates the guarantee of due process of law and
thus, is unconstitutional.101
It doesn’t matter whether you are a prisoner and high-school dropout, or a seasoned litigator. It
is a common rhetorical device for federal judges to fraudulently portray the submissions of pro se
litigants as muddled and unfocused, including John Cogswell, a graduate of Yale and George- town
School of Law with some forty years’ experience at bar. He sued the Senate for its failure to confirm
judges on a timely basis—the District of Colorado was less than half-staffed, due to the usual
partisan wrangling. It was a novel question with facial merit, as to deny access to the courts is to
deny citizens their rights. But Blackburn summarily dismissed the lawsuit, claiming that Cogswell’s
objections were “ponderous and without merit.” 102

95
Mark W. Bennett, Essay: From the “No Spittin’, 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 & n. 11 (2012–2013).
96
Reply Brief, Bond v. United States, No. 17-2150 (4th Cir. Filed May 14, 2018).
97
E.g., Cogswell v. United States Senate, No. 08-cv-01929-REB-MEH (D.Colo. Mar. 2, 2009), 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), Smith v. United States Court of Appeals for the Tenth Circuit, No. 04-RB-1222 (OES) (Oct. 15, 2004).
98
Lance v. Dennis, 546 U.S. 546 U.S. 459, 468 (2006) (Stevens, J, dissenting on other grounds).
99
E.g., United States v. Smith, No. 06-cv-02039 (D.Colo. Jan. 22, 2007)
100
See, e.g., Harrington v. Wilson, No. 05-cv-01858 (D.Colo. Sept. 21, 2006)
101
See e.g., Wood v. Orange County, 715 F.2d 1542, 1547 (11th Cir. 1983).
102
Blackburn’s ruling [Cogswell, supra] was boilerplate, boiling down to “Because I SAID so!”:

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. 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. See Erickson v. Pardus, 551 U.S. 89 ___, 127 S.Ct. 2197, 2200, 167 L.Ed.2d
1081 (2007); Andrews v. Heaton, 483 F.3d 1070, 1076 (10th Cir. 2007); Hall v. Belmon, 935 F.2d 1106, 1110
30
 Again, the most pernicious form of discrimination occurs at the appellate level. Federal appel-
late courts are de facto certiorari courts, 103 where review of appeals filed by disfavored litigants—
especially, pro se litigants!—generally take less than ten minutes. 104 The judicial output is so uni-
formly abysmal Judge Kozinski called “inedible sausage,” unfit for human consumption. 105 Many of
the summary decisions are not just wrong, but comically so. But the Fourth Circuit Court of Appeals
is more of a national disgrace than an appellate court, as its reversal rate was a stunning 4.0%. 106 By
stark contrast, back in 1945, when judges still read briefs, held hearings, and wrote their own
opinions, the national reversal rate was a respectable 27.9%.107
One of the most comical examples of appellate sloth involved Stanford-based constitutional law
scholar Michael McConnell, a Federalist Society darling whose primary career goal was to be the
fifth vote to overturn Roe v. Wade; he resigned in 2009, after Barack Obama was elected and his
window to ascend to the High Court closed. He essentially moonlighted on the Tenth Circuit,
teaching law at both Harvard and Stanford while sitting on that Court. 108 But despite his bloated
resume, he actually dismissed a matter on jurisdictional grounds WITH PREJUDICE.109 That is not
the kind of mistake a first year Civil Procedure student is likely to make.
It is not that modern trial judges are any better, so much as appellate judges are committing
criminal misconduct110 on an industrial scale. Speaking for a unanimous Court, Justice Ginsburg

(10th Cir. 1991) (citing Haines v. Kerner, 404 U.S. 519,520-21 (1972)). The recommen- dations are detailed
and well-reasoned. Contrastingly, plaintiff's Objections are imponderous and without merit.
103
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); see Penelope J. Pether, Constitutional Solipsism: Toward a
Thick Doctrine of Article III Duty; Why the Federal Circuits’ Nonprecedential Status Rules are (Profoundly)
Unconstitutional, 17 W.&M. Bill Rts. J. 955, 977 (2009).
104
See e.g., Alex Kozinski, Letter (to Judge Samuel A. Alito, Jr.), Jan. 16, 2004 at 5 (~150 rulings made in a two-day
session); 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); Stephen Breyer, Administering Justice in
the First Circuit, 24 Suffolk U. L. Rev. 29, 32-33 (1990) (a typical appeal “takes only a little of their time”).
105
Tony Mauro, Difference of Opinion, Legal Times, Apr. 12, 2004; see Alex J. Kozinski and Stephen R. Reinhardt,
Please Don’t Cite This! Why We Don’t Allow Citations to Unpublished Dispositions, California Lawyer, June 2000, at
43 As Judge Murnaghan of the Fourth Circuit openly admitted, “it is well known that judges may put considerably less
effort into opinions that they do not intend to publish. Because these opinions will not be binding precedent in any court,
a judge may be less careful about his legal analysis, especially when dealing with a novel issue of law. Wilson v. Layne,
141 F.3d 111, 124 n. 6 (4th Cir. 1998) (Murnaghan, J., dissenting). That is putting it politely.
106
U.S. Courts of Appeals—Decisions in Cases Terminated on the Merits, by Nature of Proceeding—During the 12-
Month Period Ending September 30, 2013 tbl. B-5 (2013).
107
Dir. of the Admin. Off. of U.S. Cts., Ann. Report 70 tbl.B1 (1945).
108
Mirela Turc, Judge Michael McConnell Speaks About the Ninth Amendment, The Observer (Case West. U.), Oct.
31, 2008 (bio).
109
Harrington v. Wilson, No. 06-1418 (10th Cir. Jun. 7. 2007) (withdrawn), cf., Ex parte McCardle, 74 U.S. 506, 514
(1869).
110
See 18 U.S.C. §§ 241-42 (denial of civil rights). Access to the courts is not a privilege, but a right.

31
declared that a pure "question of law" must be reviewed de novo—not “abuse of discretion,” but de
novo review.111 Fourth Circuit judge Harvie Wilkinson, also a constitutional scholar of national
repute, has acknowledged that it “is the solemn duty of judges on the inferior federal courts to
follow, both in letter and in spirit, rules and decisions with which we may not agree."112 But when
confronted with an appeal raising a pure question of law—whether the current regime of “discre-
tionary certiorari” is constitutional—he signed off on an opinion which stated, without any cita- tion
whatsoever to support it, that “[w]e have reviewed the record and conclude that the district court did
not abuse its discretion in finding Smith’s complaint frivolous and in dismissing the action on that
basis.”113
While a fish rots at the head first, the rest of the judicial tuna is fast-becoming unfit to feed to
your cat. The United States Circuit Courts of Appeal are no longer deserving of that lofty name,
having devolved into barely more than playpens for petulant lawyers who once knew a President
with galaxy-class egos, who have become sufficiently arrogant to declare that they are simply too
important to do their jobs. Judge Jones laments that
...as the docket is "dumbed-down" by an overwhelming number of routine or trivial appeals,
judges become accustomed to seeking routine methods of case disposition. . . . The situation
is like that of a competitive tennis player forced to spend the bulk of his time rallying with
novices. Just as the player's competitive edge will erode from lack of peer contact, so are
judges' legal talents jeopardized by a steady diet of minor appeals. 114
In a paroxysm of pomposity, the Supreme Court has pontificated that "[t]here can be no equal
justice where the kind of trial a man gets depends on the amount of money he has." 115 But in the
real world, America suffers from a two-tier justice system, where corporate titans like former Qwest
CEO Joe Nacchio and wealthy plutocrats like Anna Nicole Smith and Hugh Caperton enjoy
limousine treatment,116 and the rest of us have to ride in the back of the bus.
While our Justices appear to be for sale, they don’t come cheap. The steady stream of thinly-
disguised bribes—developer Harlan Crow is that generous with all of his friends, right?— aimed at
Justice Thomas includes a $500,000 cash payment to Thomas’ wife, an undisclosed number of trips
on Crow’s yacht and private jet, a $175,000 library wing named in his honor, several million to turn
the cannery his mother once worked for into a museum—a project reportedly initiated by Thomas

111
Elder v. Holloway, 510 U.S. 510, 516 (1994).
112
J. Harvie Wilkinson III, Of Guns, Abortions, and the Unraveling Rule of Law, 95 Va. L. Rev. 253, 255 (2009).
113
Smith v. Kagan, No. 15-1347 (4th Cir. Sept. 21, 2015) (slip op. at 3).
114William M. Richman, Much Ado About the Tip of an Iceberg, 62 Wash. & Lee L. Rev. 1723 (2005) (unpaginated
text-based copy, reprinted at http://www.nonpublication.com). Similar comments from other federal appellate judges
are related therein.
115
Griffin v. Illinois, 351 U.S. 12, 19 (1965).
116
United States v. Nacchio, 519 F.3d 1140 (10th Cir. 2008), Marshall v. Marshall, 547 U.S. 293 (2006), Caperton v.
A.T. Massey Coal Co., 556 U.S. 868 (2009).

32
himself—and the Bible of firebrand Black abolitionist Frederick Douglass, valued at $19,000. 117
Whether it involves attending secretive junkets offered by the Federalist Society, 118 taking a bribe
from a litigant,119 or duck hunting with a litigant during the pendency of a case, 120 our Supreme Court
is as compromised as your average Congressman.
The Roberts Court’s wholesale abdication of their assigned duties has left ordinary Americans
in a no-man's land. As Suetonius duly records, the Roman emperor Caligula imposed taxes on food,
lawsuits, and wages, but did not publish his tax laws; as a result, "great grievances were experienced
from the want of sufficient knowledge of the law. At length, on the urgent demands of the Roman
people, he published a law, but it was written in a very small hand, so that no one could make a copy
of it."121 If anything, the average American‘s predicament is even worse: We can read the
published “laws” until we go blind, but rely on them at our peril. We endure a regime of
"unknowable law," where even the hidebound pronouncements of the Court scarcely even qualify
as polite suggestions. Stare decisis has literally become stare deceased. The Court has openly said
that it doesn’t do error-correction,122 and when the cat’s away, the mice will play. Appellate courts
can—and frequently, do—flout this Court’s published dictates, rendering the United States Reports
unsuitable as a “clear guide for the conduct of individuals, to enable them to plan their affairs with
assurance against untoward surprise.” Moragne v. States Marine Lines, 398 U.S. 375, 403 (1970).
And in the words of the Ninth Circuit’s most celebrated bête noire, Judge Stephen Reinhardt, the
Court “can’t catch them all,”123 particularly, when they aren’t looking very hard.
"A government of laws, and not of men." John Adams enshrined this principle in the Massa-
chusetts Constitution. Mass. Const. art. XXX. But it was hardly a novel concept, even in Mother
England As Daniel DeFoe of Robinson Crusoe fame wryly remarked, “Kings are not Kings Jure
Divino, that when they break the Laws, trample on Property... and the like, they may be opposed
and resisted by force.” Daniel DeFoe, Jure Divino, a Satyr, Intro. v (1706) (emphasis in original).
As Chief Justice Marshall observed, “in Great Britain, the King himself is sued in the respectful
form of a petition, and he never fails to comply with the judgment of his court.” Marbury v. Mad-
ison, 5 U.S. at 163. "We hold these truths to be self-evident, that all men are created equal," The
Declaration of Independence, para. 2 (U.S. 1776), and as a logical corollary, entitled to equality

117 Mike McIntire, The Justice and the Magnate, N.Y. Times, Jun. 19, 2011, at A-1.
118 Brian Ross, Supreme Ethics Problem, ABC News, Jan. 23, 2006.
119Specifically, Scalia accepted a ride on Vice-President Cheney’s private jet to go duck hunting. The legal value of a
bribe is its value to the recipient, e.g., United States v. Gorman, 807 F.2d 1299, 1305 (6th Cir. 1986); United States v.
Williams, 705 F.2d 603 (2d Cir. 1983) (business loan to Senator), and a private jet is the ultimate upgrade.
120 Cheney v. United States District Court for the District of Columbia, 541 U.S. 913 (2004) (Scalia, J., in chambers).
121
Suetonius, The Lives of the Twelve Caesars 280 (trans. A. Thomson; Bell, 1893), Ch. 4, § LXI. I
122
Sup. Ct. R. 10; see Stephen G. Breyer, Reflections on the Role of Appellate Courts: A View from the Supreme
Court, 8 J. App. Prac. & Process 91, 92 (2006).
123
Ed Whelan, Summary Reversal of Ninth Circuit Judge Reinhardt, Bench Memos (blog), National Review Online,
Nov. 16, 2009, at http://www.nationalreview.com-/bench-memos/49460/summary-reversal-ninth-circuit-judge-
reinhardt/ed-whelan.

33
before the law. This is the reasonable expectation that the people had, and the outcome they had
risked their very lives for. As Justice Miller intoned so long ago:
No man in this country is so high that he is above the law. No officer of the law may set
that law at defiance with impunity. All the officers of the government, from the highest to
the lowest, are creatures of the law, and are bound to obey it.
United States v. Lee, 106 U.S. 196, 220 (1882) (emphasis added).
Whereas Thomas Paine proudly proclaimed “that in America THE LAW IS KING,” 124 Judge
Richard Posner of the Seventh Circuit admits that the law’s once-vast kingdom “has shrunk and
greyed to the point where today it is largely limited to routine cases.” 125 The Living Constitution
cannot destroy the Constitution, because Justice Thomas and his colleagues murdered it long ago.
By usurping the jury’s right to interpret the law, United States v. Callender, supra, finding that
judges could never be held accountable for anything they did on the bench, no matter how malicious
or criminal, Bradley v. Fisher, 80 U.S. 335 (1871), quietly extinguishing the common law right of
aggrieved citizens to initiate private criminal prosecutions, and the Lorena Bobbitt-class
emasculation of the right to a meaningful appeal, see Anastasoff v. United States, 223 F.3d 898 (8th
Cir. 2000), vacated as moot, 235 F.3d 1054 (8th Cir. 2000) (en banc)—safeguards that were an
absolute precondition to the States’ approval of the Constitution—our power-besotted judiciary has
staged a “coup d’êtat.”126 The reality of modern “law” is that it is now a respecter of persons.

B. Clarence Thomas: His FATHER’S Son.

“‘All I can tell you is that I give you my word,’ [Justice Thomas] replied. ‘That is the most
solemn promise I can make to you.’” 127 If there is a just God in Heaven, that would be Clarence
Thomas’ epitaph. After all, while “sociopath” is the functional job description of a federal judge, 128
once you have shattered your promises to God, your de facto father, the wife God gave you, and
your son, lying to the public becomes second-nature. To be blunt, to have Thomas lecture on the
virtues of personal integrity is a little like asking Bill Clinton to preach on the joys of remaining
faithful to one’s spouse.

124
Thomas Paine, Common Sense 36 (P. Eckler Co. 1918) (1776) (emphasis in original).
125
Richard Posner, How Judges Think 1 (Harv. U. Press 2008).
126
Robert H. Bork, Coercing Virtue: The Worldwide Rule of Judges 13 (AEI Press, 2003).
127
Clarence Thomas, My Grandfather’s Son 203 (HarperCollins, 2007) (hereinafter, “MGS”).
128
This is not so much my assessment as it is the consensus of your learned colleagues. Judge Laurence Silberman of
the D.C. Court of Appeals confessed that he was “in despair” about the United States Supreme Court, noting that
every one of the Justices “is guilty, to one degree or another, of violating the two most basic rules of restrained judi-
cial behavior: ruling only on questions presented by the case at hand, and interpreting precedents honestly.” Benjamin
Wittes, “Without Precedent,” 296-2 Atlantic Monthly 39 (Sept. 2005). The sainted Judge Richard Posner, whom
Justice Kagan lauded as the "the most important legal thinker of our time," Elena Kagan, Richard Posner, the Judge,
120 Harv. L. Rev. 1121, 1121 (2007), also voiced an acidic concurrence in that article, Wittes, Without Precedent at
40, as did several other appellate judges. Frankly, a seriatim list of concurrences could easily consume this essay
several times over.

34
 Unlike President Clinton—who has enough common decency and sense of shame to refrain from
lecturing on the joy of monogamy—Justice Thomas has evolved into a veritable paragon of
pomposity. Especially in light of this most recent incident, it is entirely appropriate to remind the
learned Justice of his more incriminating public statements:
“Today there is much focus on our rights,” Justice Thomas said. “Indeed, I think there is a
proliferation of rights . . . I am often surprised by the virtual nobility that seems to be
accorded those with grievances,” he said. “Shouldn’t there at least be equal time for our Bill
of Obligations and our Bill of Responsibilities?”129
Thomas conveniently appears to have forgotten that with the grant of the Article III judicial
power comes certain obligations and responsibilities. But then again, when you edit out the orgiastic
stream of self-serving statements littering his comical act of literary masturbation, you uncover the
real Clarence Thomas—a man so hopelessly self-absorbed that even doing his job was a colossal
imposition:
In the course of writing this book, I spent far too many solitary hours facing blank pages,
digging through dusty boxes full of half-forgotten files, and plowing up long-untilled parts
of my past.130
Call me old-fashioned, but I think I can speak for the untold thousands of petitioners with valid
grievances who think the Justices should spend a little less time staring at blank pages, and a little
more staring at petitions. All we ask of Emperor Thomas—or for that matter, his fellow despots on
the federal bench—is that he take just a few minutes out of his crushing schedule of pimping his
book, giving lectures and interviews, and rubbing elbows with the Queen to do their reading
assignments. After all, they are getting north of $275,000 a year, amazing pension plans, and the
blessings of celebrity that come with the job. My $300 filing fee spends every bit as well as that of
Exxon’s or Anna Nicole Smith’s, and it hardly seems a major imposition to expect judges to put in
40-hour work weeks for that kind of jack. After all, he did swear out this oath:
“I, Clarence Thomas, do solemnly swear that I will administer justice without respect to
persons, and do equal right to the poor and to the rich, and that I will faithfully and
impartially discharge and perform all the duties incumbent upon me as XXX under the
Constitution and laws of the United States. So help me God.” 131
But while his oath of office meant about as much to Clarence Thomas as the vow he gave to the
wife God gave him—and, carries the same legal penalty—we also ask what is expected of every
other American citizen: obedience to the law. Specifically, 18 U.S.C. § 1001(a) provides, in perti-
nent part:

129
Adam Liptak, Reticent Justice Opens Up to a Group of Students, N.Y. Times, Apr. 13, 2009.
130
MGS, at ix (emphasis added).
131
28 U.S.C. § 453 (emphasis added). It is presumed that Thomas, a Catholic, would not have invoked his right to
merely affirm his oath. See generally, MGS.

35
 (a) Except as otherwise provided in this section, whoever, in any matter within the juris-
diction of the executive, legislative, or judicial branch of the Government of the United
States, knowingly and willfully—
(1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact;
(2) makes any materially false, fictitious, or fraudulent statement or representation;
or
(3) makes or uses any false writing or document knowing the same to contain any
materially false, fictitious, or fraudulent statement or entry;
shall be fined under this title [and/or] imprisoned not more than 5 years...
According to the Department of Justice, the Section 1001(a) as amended in 1996 (pointedly, after
the Ethics in Government Act!) was intended to reach “documents that have most often been the
subject of congressional false statement prosecutions, such as vouchers, payroll documents, and
Ethics in Government Act (EIGA) financial disclosure forms.” United States Department of
Justice, Criminal Resource Manual 902 (1997) (emphasis added).
1. Affirmative-Action Ivy League Grad Thomas: “I Am Incredibly Stupid!”
To incur criminal liability under Section 1001, all Justice Thomas had to do was knowingly omit
a material fact from his annual financial disclosure form. As he has recently amended the forms in
question in response to public pressure, he has effectively conceded that the omissions were
material. But rather than do the honorable thing and resign in disgrace, he invoked the “I am
incredibly stupid” defense, which is not only unbecoming of an Associate Justice of the United
States Supreme Court, but never seems to work unless you are a federal judge. For instance, in an
unpublished Tenth Circuit case—providentially, styled United States v. Thomas—neither the court
nor jury were willing to swallow the “incredible stupidity” defense:
For example, Thomas bought a VCR and wide screen television for $5,130; by the time the
units reached the final limited partnership, they were carried on the books at 307,800. He
bought twenty horses for a total of $12,400; the horses were eventually carried on the books
at $3 million.
The jury could have found the necessary willfulness and criminal intent on the basis of such
evidence alone. The obviously sham nature of these trans- actions could lead to such an
inference.
United States v. Thomas, No. 91-4061, 1993.C10.41489, ¶¶ 97-98 (10th Cir. Feb. 23, 1993) (Ver-
suslaw). And while it is a tough sale for a common criminal not named Donald Trump to make, it
is a particularly daunting one for Justice Thomas to attempt, as he had countless trees murdered in
his attempt to establish his towering intellect:
As much as it stung to be told that I’d done well in the seminary despite my race, it was far
worse to feel that I was at Yale because of it. I sought to vanquish the perception that I was
somehow inferior to my white classmates by obtaining special permission to carry more than
the maximum number of credit hours and by taking a rigorous curriculum of courses in such

36
 traditional areas as corporate law, bankruptcy, and commercial transactions. How could
anyone dare to doubt my abilities if I excelled in such demanding classes? I even went out
of my way to take a course in taxation....’ 132
Unfortunately for Justice Thomas, Justice Thomas makes a devastating point: You can’t claim
that you are a worthy successor to the great Thurgood Marshall on one hand and then, almost in the
same breath, pretend you are an imbecile who just fell off the turnip truck. As any seminarian knows,
“Even a fool is thought wise if he keeps silent, and discerning if he holds his tongue.” Prov. 17:28
(NIV).
Specifically, Justice Thomas recently proclaimed that he “inadvertently omitted” the source of his
wife’s earned income as required by the Ethics in Government Act, “due to a misunderstanding of
7

the filing instructions.”133 This becomes especially problematic in light of Politico’s revelation that
Justice Thomas was filling out said forms properly until 1997—ostensibly, about the time that she
joined the ultra-right-wing Heritage Foundation. 134 Once is a mistake; ten years is a pattern.
And to not put too fine a spin on it, the reports themselves 135 are almost as incriminating as a
pubic hair on a Coke can:

132
MGS, at 75 (italics in original; bold type added).
133
Ariane de Vogue and Devin Dwyer, Justice Clarence Thomas Amends 20 Years of Disclosure Forms With Wife's
Employers, ABCNews.com, Jan. 24, 2011. 5 U.S.C. § 102(e)(1) provides, in pertinent part:

Except as provided in the last sentence of this paragraph, each report required by section 101 shall also
contain information listed in paragraphs (1) through (5) of subsection (a) of this section respecting the spouse
or dependent child of the reporting individual as follows:

(A) The source of items of earned income earned by a spouse from any person which exceed $1,000
and the source and amount of any honoraria received by a spouse....
134
Jennifer Epstein, Clarence Thomas Revises Disclosure Forms, Politico.com, Jan. 24, 2011, at
http://www.politico.com/news/stories/0111/48086.html. Although Ms. Thomas’ resumé is not a matter of public
record, she is known to have worked for Heritage as early as 1999. E.g., Virginia L. Thomas, Juvenile Justice:
Legislating Without Adequate Oversight of Existing Programs, Heritage Foundation, June 15, 1999, at
ttp://www.heritage.org/Research/Reports/1999/06/Juvenile-Justice.
135
Clarence Thomas, Form AO-10 (Financial Disclosure Rept. for Calendar Year 2007) 2 (May 15, 2008)
37
 Through his conduct, Justice Thomas clearly demonstrated his knowledge of the difference
between earned and investment income -- correctly treating the advances on his autobiography as
non-investment income. The instructions are pellucid, and require him to disclose the source of wife
Virginia’s non-investment income, but not the amount. Moreover, every American taxpayer is
charged with the ability to distinguish between investment and non-investment income. E.g., 26
U.S.C. §§ 163(d), 212. It is a simple concept, explained thoroughly in any law school survey course
on income taxation. Reading the damned form can’t be that hard.
It would be one thing if Justice Thomas were a day laborer, used to spending his days out in the
fields or on construction sites, but Thomas is an Associate Justice of the United States Supreme
Court, who has even bragged about his familiarity with tax law. In his autobiography, he boasts that
he had earned an honors grade in his class on taxation at Yale Law School, MGS at 75, confessed
that he was “interested in tax and corporate law,” Id. at 99, and “had bench trials in a number of tax
cases.” Id. at 108. Yet, despite his admission of competence in the area of tax law, see, Mo. Rules
of Prof. Conduct 1.1, and his admission by conduct that he understood the dif- ference between
investment and non-investment income is, he claimed that this serial oversight was “inadvertent?”
Maybe he just thought that he was Charlie Rangel.136

2. Yes, Virginia, It Really Is a Material Omission.

Even though 5 U.S.C. Appendix 102(e)(1)(A) sets the threshold for the reporting of spousal
income at $1,000, all but the most partisan Democrats would scoff at this scandal, if all Virginia
Thomas made was a few shekels as a free-lance writer. And in theory, a judge who fails to report
his wife’s casual baby-sitting income could be fined in a civil court. See 5 U.S.C. Appendix 104(a)

136
See e.g., Isabel Vincent and Melissa Klein, The Case Against Charlie Rangel, N.Y. Post, Oct. 4, 2009 (Chairman of
Ways and Means caught committing tax fraud).

38
(up to a maximum $50,000 fine per incident). But even a cursory glance at the Heritage Foundation’s
2007 income tax return reveals that she received over $180,000 for her efforts that year:

While that might be pocket change in the land of Jack Abramoff, out here in the hinterlands,
that’s real money. And over the five years that we know about, where Ms. Thomas’ salary is publicly
available, she received $686,000. 137 Presuming that Ms. Thomas worked for The Heritage
Foundation since at least 1999, her total compensation from that employer for that period is
substantially certain to exceed $1,000,000. And at about the same time, “Fraser Verrusio, a former
policy director to Republican Rep. Don Young of Alaska on the House Transportation Committee,
is [now standing trial for] illegally accepting an expenses-paid trip to the first game of the 2003
World Series and lying about it on a financial disclosure form.”138
A $10,000 omission is a crime, but a $1,000,000 one is not?
Let’s be honest: If any other son of Pinpoint, South Carolina had committed this supposedly
“inadvertent” serial error, he would have been prosecuted to the fullest extent of the law. In fact, it
has happened often; just ask Martha Stewart. But as Michael Tomasky of The Guardian cynically
observes, in America, the demigods of our Supreme Court are above the law:
Obviously, Thomas is not going to be indicted over this. But how could a man - a member
of the Supreme Court! - just openly lie on such a form? Lie? Yes, rather obviously. Let's put
it this way. If you or I were filling out a form, and we came to a question about our spouse's
income, and we knew very well that our spouse had income, we would check the appropriate
income category. And here is one of the nine leading legal people in the United States. On
what conceivable honest basis could he have thought his wife, who got up every

137
Kim Geiger, Clarence Thomas Failed To Report Wife's Income, Watchdog Says, L.A. Times, Jan. 22, 2011
(Common Cause only included the years 2003-2007, and did not take deferred compensation into account).
138
Nedra Pickler, Congressional Aide, Final Abramoff Scandal Defendant, Goes On Trial Over World Series Trip,
L.A. Times, Jan. 26, 2011
39
 morning and went to work every day at one of Washington's most richly endowed think
tanks, had no income? For six years?
I wish we had a satirist, a Balzac, chronicling this age. It is beyond believability. 139
This wasn’t a mere failure to disclose. When Justice Thomas ticked the box that said “none,” he
made a materially false representation not just once, but for at least thirteen years running. A pattern
of (mis)conduct. And, were he a lesser Thomas like Judge Thomas Porteous, it would be included
in his articles of impeachment:
Beginning in or about March 2001 and continuing through about July 2004, while a Federal
judge in the United States District Court for the Eastern District of Louisiana, G. Thomas
Porteous, Jr., engaged in a pattern of conduct inconsistent with the trust and confidence
placed in him as a Federal judge by knowingly and intentionally making material false
statements and representations under penalty of perjury ...
In doing so, Judge Porteous brought his court into scandal and disrepute, prejudiced public
respect for and confidence in the Federal judiciary, and demonstrated that he is unfit for the
office of Federal judge.
Wherefore, Judge G. Thomas Porteous, Jr., is guilty of high crimes and misdemeanors and
should be removed from office.140
As everyone will recall, President Clinton was impeached and disbarred for lying in a depo-sition.
Self-righteous statements by Republican lawmakers with respect to that incident could readily fill a
book, but few are more ironic than that of convicted felon and former House Majority Leader Tom
DeLay (R-TX):
[T]his nation sits at a crossroads. One direction points to the higher road of the rule of law.
Sometimes hard, sometimes unpleasant, this path relies on truth, justice and the rigorous
application of the principle that no man is above the law.
Now, the other road is the path of least resistance. This is where we start making exceptions
to our laws based on poll numbers and spin control. This is when we pitch the law completely
overboard when the mood fits us, when we ignore the facts in order to cover up the truth.’
No man is above the law, and no man is below the law. That's the principle that we all hold
very dear in this country.141

139
Michael Tomasky, Clarence Thomas, What? (blog), The Guardian (U.K.), Jan. 27, 2011, at
http://www.guardian.co.uk/commentisfree/michaeltomasky/2011/jan/27/usdomesticpolicy-clarence-thomas-what
(emphasis added).
140
Exhibition of Articles of Impeachment Against G. Thomas Porteous, Jr., Judge of the United States District Court
for the Eastern District of Louisiana, H. Res. 1031, 111 Cong. Rec. S1645 (Mar. 17, 2010) (emphasis added).
141
Tom DeLay, as quoted in, 'Follow the Truth Wherever It Leads', Wash. Post, Oct. 9, 1998 at A22.
40
 No man is above the law … but to fellow judges like Brett Kavanaugh, judges are not mere men.
When I tried to prosecute Thomas—in a matter of first impression in the Circuit--my case was
summarily dismissed.

C. BADA BOOM! BADA BING! The Saga of “Judge Naughty”

Some years ago, Colorado had its very own little Eliot Spitzer scandal – only more salacious.
Police busted an upscale escort service called Denver Players; according to a call girl who went
public, these fine ladies serviced men within the friendly confines of the VERY exclusive Denver
Club. And this is a sample of what you could get for north of $1,000 a night:

This courtesan implicated the usual suspects (e.g., professional athletes including Nuggets,
Broncos, and Rockies), alleging that orgies involving cocaine occurred at the Denver Club. She
ID'd a "prominent local attorney" -- like attorneys and cocaine don't go together like milk and
cookies. She also claimed that Denver Players had thousands of clients; other sources reportedly
claim that Players catered to "judges [NOTE THE PLURAL!], lawyers, businessmen, athletes,
and politicians."
Prominent on that list was our own Paulie Walnuts doppelganger and Bush #41 appointee Chief
Judge Edward J. Nottingham of the United States District Court for the District of Colorado.
41
 Columnist Max Boot calls it ‘gavelitis’: “Judges suffering from this disease grow so arrogant, so
out of touch, so remote from everyday life that they think that the normal rules of good beha- vior
don’t apply to them.”142 And nowhere was this more true than in the case of the man that the hookers
he banged on a weekly basis called “Judge Naughty.”
Nottingham’s sin was straightforward: While in chambers, he was playing with something in his
briefs when he should have been reading briefs. He lived large, blowing $3,000 (excluding cash
tips for the dancers) in a night of drunken debauchery at the Diamond Cabaret gentlemen’s club that
he claims that he didn’t even remember—lending a new meaning to the phrase, "sober as a judge."143
He was a habitué at top-drawer restaurants like Elway’s Steak House, where a dinner and wine could
easily set you back north of $100 per person.144ivorce records also came to light showing that he
been trolling for skank during office hours at adultfriendfinder.com, a graphic swingers’ site:
"When I asked about the dating service, he turned around in his chambers, and he hit his
computer and he told me all about the dating service; it was a porn site," [then-third wife
Marcie] Jaeger testified in the divorce proceeding. She was questioned about whether the
site was on the computer display, and she responded, "Yes, it was.”145
Funny as hell, but that’s not a crime. Let’s get to the crime.
“Sources tell 9Wants to Know the [house of prostitution] catered to prominent clients including
judges [note the plural] lawyers, businessmen, athletes and politicians ... The driver told 9NEWS he
took prostitutes to meet Judge Nottingham at two locations in the Denver area about 10 times during
the summer of 2007 ...The driver says the women returned from their meeting with the judge with
$300 or $400 in cash [the tip] per visit.” 146 And by all accounts, Nottingham spent a lot of time in
those expensive saddles. Another courtesan claimed that "she had sex with Judge Nottingham for
$250 to $300 an hour once a week from February 2003 through November 2004 at the former escort

142
Max Boot, Out of Order: Arrogance, Corruption, and Incompetence on the Bench 25-6 (Basic Books, 1998)
143
Felisa Cardona, Feds Grill Nacchio Judge's Ex-Wife, Denver Post, Aug. 11, 2007; Judge issues statement on strip
club visits, Summit Daily News (AP), Aug. 11, 2007.
144
Al Lewis, Uncover Naked Truth About Judge, Denver Post, Oct. 12, 2007.
145
Felisa Cardona, Feds grill Nacchio judge's ex-wife, Denver Post, Aug. 14, 2007.
146
Jeffrey Wolf, et al., Chief federal judge investigated for alleged involvement with prostitutes, 9News.com, Mar. 7,
2008, http://www.9news.com/news/story.aspx?storyid=87702&catid=222.
42
agency Bada Bing of Denver."147 It is worth noting that "Judge Nottingham married [third] wife
Marcie Jaeger, on Valentine's Day 2004," 148 indicating that he didn’t even stop when he became a
newlywed.
This, in turn, begs an obvious question. These ladies did not cum cheap. As he was patronizing
Eliot Spitzer-class courtesans on a weekly basis for years, something he could not possibly have
afforded on a judge’s salary—his EIGA forms claimed no other significant source of income. 149 And
even if he had spent roughly half of his $10,000/month take-home on hookers, it is something his
new wife would have noticed. 150
By process of elimination, the Judge was taking bribes, either in cash or in-kind.
If the judge was taking bribes, somebody was making them. And you would presume that this is
something that federal authorities would want to find out. Threaten him with hard time in Club Fed
for taking bribes and honest services fraud, and he would have sung like Whitney Houston. But as
was the case with Clarence Thomas, the Feds looked the other way. 151 And despite this, he wasn’t
even disciplined by the Colorado bar 152—though his profile conveniently elides the time he spent on
the bench.153

147
Sara Burnett, Nottingham a No-Show Today After Report of Resignation, Rocky Mountain News, Oct. 16, 2008
(emphasis added).
148
Amy Herdy, et al., FBI Questions Ex-Wife of Federal Chief Judge, 9News.com, at
http://www.9news.com/news/article.aspx?storyid=75253 (no date given for publication of story).
149
See, Edward W. Nottingham, 2003-07 Financial Disclosure Reports. Disclosure reports for the years 2003-07
acquired from http://www.judicialwatch.org/judge/nottingham-edward-w; as he is no longer a judge, they were
removed from the site, but copies were retained.
150
Herdy, FBI Questions Ex-Wife, supra n. __ (Jaeger had unfettered access to the family finances).
151
The worst publicly-disclosed allegation against him—that he allegedly tampered with a material witness, Deborah
Sherman, Counsel investigating chief judge's past, 9News.com, Oct 27, 2008,
athttp://www.9news.com/news/story.aspx?storyid=102682&catid=188, see 18 U.S.C. § 1512—was based purely on
“he said, she said” evidence
152
https://www.licensedlawyer.org/Find-a-Lawyer/Profile/u/2000363/Edward-Nottingham (Bar #4498) (screenshot
saved).
153
https://www.licensedlawyer.org/Find-a-Lawyer/Profile/u/2000363/Edward-Nottingham (screenshot saved).
43
 To make matters even worse, Judge Nottingham probably wasn’t the only Colorado or Tenth
Circuit judge who was accepting gratuities to pay for the courtesans’ sexual favors. 154 And as a lot
of high-profile people were involved, it should come as no surprise that the incriminating evidence
was made to disappear: “According to a Denver Police report, Scottie Ewing, the former owner of
Denver Players/Denver Sugar, was the victim of a burglary between 6 and 8 p.m. Items stolen from
the property don't include the typical cash, jewelry, and ipod; rather, intruders made off with Ewing's
computer and a bin of records from the former escort service.” 155 (I confirmed this with Ewing some
years later.)

154
As local TV station KUSA reported, the escort service “catered to prominent clients including judges, lawyers,
businessmen, athletes and politicians.” Jeffrey Wolf and Jace Larson, New Warrant Served in Connection to Prostitution
Ring, 9News.com, Mar. 20, 2008, available at http://www.9news.com/news/story.aspx?storyid=88440&catid=222; see
also, Nicole Vap and Deborah Sherman, Sex For Sale: Escorts Talk To 9News After Police Raid, 9News.com,
http://www.9news.com/news/article.aspx?storyid=- 85982 (Mar. 2008; no exact publication date given).
155
Ryan Grenoble, Former Brothel Owner Scottie Ewing's Client List Stolen, Rumor-Mill Set To Hyperdrive (Update),
Aug. 8, 2011, at http://www.huffingtonpost.com/2011/06/08/michael-hancockprostitution-rumor_n_873162.html

44
 And if you give preferential treatment to a friend from the bench, you can rest assured that your
homies at the Circuit level will commit felonies to protect you if they can and the system, if they
can’t. As Galveston Daily News editor Heber Taylor caustically writes, in ‘connecting the dots’
regarding disgraced United States District Judge Samuel B. Kent:
In 2001, there was grumbling about favoritism in Kent’s court on Galveston Island. The
Southern District removed 85 cases from the court. The attorney on all 85 was Richard
Melancon, Kent’s close friend and the host of the reception for the judge’s 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 it’s incomplete. What’s missing is an inquiry into the
way the judicial system itself responded to complaints. ...
Before the judicial council took any significant action against Kent—action, say, that would
have cost him a single paycheck—The 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 us—the people who are served by this court—to trust it.156
Let’s put this in proper perspective. Eighty-five litigants. Eighty-five litigants, denied their
constitutional right to have their cases heard by a fair and independent tribunal. Eighty-five separate
acts of honest services mail fraud. E.g., United States v. Welch, 327 F.3d 1081 (10th Cir. 2003)
(elements of honest services mail fraud). And one felony, committed by judges charged with
ensuring that incidents like these do not happen.
Misprision of felony has four elements: (1) commission of the felony alleged; (2) the accused
had full knowledge of that fact; (3) the accused failed to notify authorities; and (4) the accused took
an affirmative step to conceal the crime. United States v. Baez, 732 F.2d 780 (10th Cir. 1984). But
being a federal judge means never having to obey the law; that’s how we got Edward Nottingham,
Manuel Real, and Thomas Porteous, among others. "Heavy case-load?" No. The judges on the Fifth
Circuit obviously knew what they were doing, and that what they were doing was a crime. And of
course, Judge Kent was not prosecuted for criminal malfeasance on the bench but rather, for criminal
sexual abuse.157
Through diligent and collective effort, our judiciary has insulated itself from any accountabil-
ity for their actions. Criminal prosecution of judges is exceedingly rare, unless you commit truly

156
Heber Taylor, Judicial Discipline Needs a Full Probe, Galveston County Daily News (TX), May 15, 2009 (accessed
via NewsBank; copy on file; emphasis added).
157
Stewart M. Powell, Judge Kent reports to prison hospital in Massachusetts, Houston Chronicle, Jun. 15, 2009.
45
weird acts like using a penis pump on the bench. 158 In Judge Nottingham’s case, it probably helped
that the U.S. Attorney was a former associate of the notorious Jack Abramoff. 159 Even a major Los
Angeles Times expose doesn’t seem to do any good. 160
Congress allows judges to police themselves, and virtually all discipline occurs behind closed
doors.161 You shouldn’t need slides to know how that would turn out—of over 6,000 complaints,
only seven resulted in punishment. 162 And this is also true in states where judges control the judicial
discipline process.163 By contrast, where judges are elected, judicial blotters are sources of endless
amusement: In Michigan, an alcoholic judge insisted that he hadn’t been drinking when he managed
to plow his SUV into a convenience store. 164 Still, my favorite was the married judge who exposed
himself in an airport men’s room, apparently while soliciting homosexual sex: he ‘got off’—because
district attorneys try hard not to prosecute judges.165

158
Penis Pump Judge Gets 4-Year Jail Term, USAToday.com, Jun. 18, 2006, available at http://www.usatoday.com-
/news/nation/2006-08-18-judge-sentenced_x.htm (visited Sep. 13, 2006). Only when corruption finally reaches pan-
demic proportion is anything ever done, as was the case in Cook County, Illinois—Chicago—where the entire state
Circuit Court was described as “a criminal enterprise.” United States v. Murphy, 768 F.2d 1518, 1531 (7th Cir. 1985).
159
Specifically, Troy Eid lobbied Interior Secretary Gale Norton on behalf of the Mashpee Tribe in November, 2003,
Sean Gonsalves, Tribal Lobbying Produced Results, Cape Cod Times, Oct. 21, 2006, available at http://archive.-
capecodonline.com/special/tribalrecog/triballobbying21.htm (last visited Oct. 24, 2007; copy on file)—the same one
famously represented by Abramoff, Mashpee Chairman Happy With Abramoff Work, Indianz.com, Nov. 22, 2005,
http://www.indianz.com/News/2005/011380.asp (visited Oct. 24, 2007; copy on file), but evidently, never bothered
reporting his lobbying efforts, Did CO's USA Hide His Abramoff-Related Lobbying?, The Next Hurrah (blog), May
1, 2007, http://thenexthurrah.typepad.com/the_next_hurrah/2007/05/did_cos_usa_hid.html (visited Oct. 24, 2007;
copy on file; the link to GT’s disclosure form is broken).

160
Michael C. Goodman and William J. Rempel, In Las Vegas, They’re Playing With a Stacked Judicial Deck, L.A.
Times, Jun. 8, 2006, at https://www.latimes.com/nation/la-na-justice080606-story.html
161
See Lara A. Bazelon, Putting the Mice In Charge of the Cheese: Why Federal Judges Cannot Always be Trusted to
Police Themselves and What Congress Can Do About It, 97 Ky. L.J. 439 (2009) (a detailed analysis of Manuel Real’s
disciplinary case, cryptically styled "In re Complaint of Judicial Misconduct," 425 F.3d 1179 (9th Cir. 2005).
162
Lise Olsen, Secrecy May Help Protect Misbehaving Judges, Houston Chronicle, Dec. 13, 2009, at A-1.
163
By way of example, in Kansas, 679 complaints—including 28 alleging bribery or corruption!—were filed in a year,
but reportedly, the state judicial qualifications commission did not act on a single one. http://www.johnson-
countykansas.net/JudicialDCommission.htm (visited May 7, 2004). Colorado’s commission reveals an equally sterling
record, not acting on a single complaint in two years. Colorado Commission on Judicial Discipline: 2002 Annual
Report, Colo. Lawyer, June, 2003, Vol. 2, No. 6, p.27, available at http://www.cobar.org/tcl/tcl_articles- .cfm?Article-
ID=2763 (visited May 8, 2004). The California-based watchdog group, Jail 4 Judges, adds that over a ten-year period,
only seven judges were removed from the bench as a result of 9,529 judicial abuse complaints in that state, despite the
fact that at least three state judges were convicted of taking bribes and committing RICO viola- tions during that
period. Frank York, “‘Jail 4 Judges’ Targets Judicial Corruption,” WorldNetDaily, Aug. 30, 1999, available at
http://www.worldnetdaily.com/news/article.asp?ARTICLE_ID=17180 (visited May 8, 2004) (whereas WND isn’t a
particularly reliable source of news, J4J is).
164
Kathy Jessup, “Judge’s Removal Sought,” South Bend Tribune, May 1, 2004, available at http://www.southbend-
tribune.com/stories/2004/05/01/local.20040501-sbt-MICH-A5-Judge_s-_removal.sto (visited May 8, 2004).

David Shepardson, “Judge is Accused of Indecent Act,” Detroit News, Jul. 31, 2001, available at http://detnews.-
165

com/2001/metro/0107/31/d01-258053.htm (visited May 19, 2004) (official disciplinary report on file).

46
D. Brett Kavanaugh: Adventures In Perjury
My mom taught me the importance of equality for all Americans—equal rights,
equal dignity, and equal justice under law.
—Judge Brett Kavanaugh166
Confirmation hearings in the Senate Judiciary Committee are a special kind of farce. While under
oath, candidates testi-lie, proclaiming their “commitment to the rule of law,” that they will “interpret
the law as written,” and “not impose personal policy preferences.” 167 And five minutes after they
receive their gavels, they forget that they ever made those promises.
Unfortunately. Brett Kavanaugh is not unique.
In his opening statement, Kavanaugh averred that he “stands behind” his body of work on the
D.C. Circuit and tells people: “Don’t read what others say about my judicial opinions. Read the
opinions.”168
The reader is cordially invited to take Judge Kavanaugh’s sage advice.
The matter of Smith v. Scalia169 is instructive. The appeal raised a question of first impression:
What did the Framers mean when they said that Article III judges “shall hold their offices during
good Behaviour,”170 and who had the power to enforce good behavior tenure? And this is, quite
literally, all he said in denying the appeal:
As for appellant’s requests for injunctive (or “affirmative”) relief seeking to enforce the
Good Behavior Clause of the Constitution, Art. III, § 1, against the judicial appellees, he has
not shown that private individuals have the authority to enforce the Clause.
Or to put it functionally, “You lose ... because WE SAID SO!”
The briefs quote Blackstone, and the scholarship of Saikrishna Prakash and Steven D. Smith 171
and Harvard’s legendary Raoul Berger, 172 showing that there was a clear and unequivocal answer:
the judge who violates the oath of office in even a single case has violated the condition of good

166
Brett Kavanaugh’s Opening Statement to Senate Judiciary Committee, CNN, Sept. 4, 2018.
167
Confirmation Hearing On the Nomination of Brett Kavanaugh To Be Circuit Judge for the District of Columbia
Circuit, S. Comm. on the Judiciary, 109th Cong., 435 (May 9, 2006) (statement of Brett Kavanaugh)
168
Brett Kavanaugh’s Opening Statement to Senate Judiciary Committee, CNN, Sept. 4, 2018.
169
No. 14-5180 (D.C. Cir. Jan. 14, 2015) (per curiam).
170 U.S. Const. art. III, § 1.
171
Saikrishna Prakash, and Steven D. Smith, How to Remove a Federal Judge, 116 Yale L.J. 72 (2006), and follow-up
articles.

Raoul Berger, Impeachment of Judges and “Good Behavior” Tenure, 79 Yale L.J. 1475 (1970); see generally, R.
172

Berger, lmpeachment: The Constitutional Problems (Harvard U. Pr. 1974).

47
behavior,173 and may be removed from the federal bench by an aggrieved litigant. 174 At bare mini-
mum, someone has to be able to enforce it.
There is no contrary authority.
Cui bono? As Upton Sinclair quipped, "It is difficult to get a man to understand something, when
his salary depends on his not understanding it."175 Brett Kavanaugh was highly motivated to deny
the appeal because, as he well knew, HE could be next. It’s like asking Tom Brady to investigate
Deflategate, Richard Nixon to investigate the Watergate break-in, or Cardinal Law to investigate
Father Geoghan. You know what the result will be.
“I still like BEER.”176
Judge Kavanaugh’s cardinal sin is not so much that he put his fingers on the scales of justice to
benefit himself personally, but that the opinion falls scandalously short of the minimum required to
satisfy the demands of due process. As Professor Tribe writes in his seminal treatise, due pro- cess
has two elemental components: “the right to be heard and the right to hear why.”177 To meet the
requirements of due process, a court’s answer must be more than “Because I said so, damnit!” Justice
Breyer elaborates:
Judges do not simply announce a legal conclusion. They reason their way to that conclu-
sion 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.178
The Breyer standard is not just a statement of best practices, but what we have a constitutional
right to demand from our courts. Every American—from the lowliest serf to the mightiest prince
has a right to “adequate, effective, and meaningful” access to federal court.179 Judge Kavanaugh had

173
As explained in greater detail, infra, English law sourced in Coke, Blackstone, and the Year Books, defines this
seemingly abstruse term of legal art with remarkable precision. By making a public official subject to removal for
violating it, the condition of “good behavior” defined the powers of any given office. When an Article III judge is
elevated to the federal bench, s/he swears an oath to "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" him
or her, 28 U.S.C. § 453, thereby defining the scope of his duties and obligations.
174
See generally, infra n. ___
175
Upton Sinclair, I, Candidate for Governor: And How I Got Licked 109 (U. Cal. Press 1994) (1935).

176
Sonia Rao, Watch Stephen Colbert’s Kavanaugh-themed parody of UB40’s ‘Red Red Wine’, Wash. Post, Oct. 3,
2018, at https://www.washingtonpost.com/arts-entertainment/2018/10/03/stephen-colbert-parodies-ubs-red-red-wine-
by-mixing-it-with-brett-kavanaugh-testimony/
177
Laurence Tribe, American Constitutional Law 744 (2d ed. 1988) (italics in original).

Stephen Breyer, Making Our Democracy Work: A Judge’s View 83 (2010) (emphasis added). Former Chief Justice
178

Hughes adds, "there is no better precaution against judicial mistakes than setting out accurately and adequately the
material facts as well as the points to be decided." Charles E. Hughes, The Supreme Court of the United States 64 (1928).
179
Bounds v. Smith, 430 U.S. 817, 822 (1977). More directly, we have a constitutional right to "equal and impartial
justice under the law," Leeper v. Texas, 139 U.S. 462, 468 (1891), and where “there is a legal right, there is also a legal
remedy by suit, or action at law, whenever that right is invaded," Marbury v. Madison, 5 U.S. 137, 163 (1803), for to
48
a corresponding duty to provide it.180 Willful failure to discharge that duty is a federal crime, and if
done as a part of a conspiracy, a felony. 181
In his opening statement, Judge Kavanaugh had much to say about the judging process. The
judge “must interpret the Constitution as written, informed by history and precedent,” and “inter-
pret the law, not make the law.” 182 Importantly, citing Federalist 83, he adds that “rules of legal
interpretation are rules of common sense.183
The first applicable rule, which Kavanaugh should have encountered in the first week of law
school, is that it “cannot be presumed that any clause in the constitution is intended to be without
effect; and, therefore, such a construction is inadmissible, unless the words require it.”184 Second, it
is the court’s duty “to give effect, if possible, to every clause and word of a statute.” 185 Third, 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.” 186 Finally, in the
words of Justice Thomas, our “courts must presume that a legislature says in a statute what it means
and means in a statute what it says there.” 187
A competent opinion would have began by quoting the relevant law: "‘The Judges, both of the
supreme and inferior Courts, shall hold their Offices during good Behaviour.’ U.S. Const. art. III, §
1.” And—assuming that they taught property law back at Yale Law School—Judge Kavanaugh
would have recognized this as a life estate subject to a condition. If the condition is violated, the
life estate is extinguished.
As “good Behaviour” is opaque on its face, the competent judge would turn to the literature to
ascertain its meaning. As it was a term of legal art, he would start with Madison’s assertion that
when "a technical word is used [in the Constitution], all the incidents belonging to it necessarily

“take away all remedy for the enforcement of a right is to take away the right itself.” Poindexter v Greenhow, 114 U.S.
270, 303 (1884).
180
The existence of jurisdiction "creates an implication of duty to exercise it, and that its exercise may be onerous
does not militate against that implication." Mondou v. New York, N.H. & H.R. Co., 223 U.S. 1, 58 (1912).
181
18 U.S.C. §§ 241-42 (conspiracy against/deprivation of rights). And this is no venial sin: As Justice Moody wrote a
century ago, “[t]he right to sue and defend in the courts ... is the right conservative of all other rights.” Chambers v.
Baltimore & Ohio R. Co., 207 U.S. 142, 148 (1907).
182
Brett Kavanaugh’s Opening Statement to Senate Judiciary Committee, CNN, Sept. 4, 2018.
183
Brett Kavanaugh’s Opening Statement to Senate Judiciary Committee, CNN, Sept. 4, 2018. Justice Frankfurter
counseled that we should read the law "with the saving grace of common sense." Bell v. United States, 349 U.S. 81, 83
(1955).
184
Marbury v. Madison, 5 U.S. 137, 174 (1803). The case is the first or second one featured in most if not all
constitutional law textbooks, for obvious reasons.
185
Montclair v. Ramsdell, 107 U.S. 147, 152 (1883).
186
Jarrolt v. Moberly, 103 U.S. 580, 586 (1880).

Connecticut Nat’l Bank v. Germain, 503 U.S. 249, 253-54 (1992) (quotations omitted; collecting cases covering
187

two centuries).

49
attended it." 188 He would then turn to Blackstone, Coke, and English Year Books to determine its
common law definition. And a Federalist Society darling like Judge Kavanaugh might turn to the
Federalist Papers, where Alexander Hamilton opined that “the standard of good behavior for the
continuance in office of the judicial magistracy, ... [is] the best expedient which can be devised in
any government, to secure a steady, upright, and impartial administration of the laws.” 189 If he
needed help beyond that, he could have been schooled by Harvard’s legendary Raoul Berger.
Or he could have cheated, and just read the g******ed briefs.
At bare minimum, a competent opinion would have defined “good Behaviour,” showing how the
oath of office offers judges fair notice of the misconduct which would cause their dismissal. And
no, it doesn’t mean former Chief Judge Ed Nottingham of the District of Colorado, blowing over
$3,000 at a strip club in a night of drunken debauchery. 190 In short, anything that would be a
violation of the oath of office would be a violation of the Good Behavior Clause. 191 Or, to put it
functionally, under that provision, if a judge doesn’t DO his job, he loses his job.
Next, a competent opinion would identify who is authorized to enforce good behavior tenure.
Judges, acting in their own self-interest, would like you to believe that no one can, 192 but neither the
text nor common sense could sustain such a bizarre proposition, as it would grant judges a god-like
power without accountability. We turn to Professor Berger for a healthy dose of common sense:
"[w]hen an office held ‘during good behavior’ is terminated by the grantee’s misbehavior, there

188
3 J. Elliot, Debates on the Federal Constitution 531 (1836). This was accepted by Judge Pendleton, Chief Justice
Marshall, and Edmund Randolph in the course of debate, id. at 546, 558-59, 573, and Marshall applied it in United
States v. Wilson, 32 U.S. 150, 160 (1833), in finding that the scope of the President’s pardon power was determined by
reference to English law.
189
Federalist No. 87, at 437.
190
Yes, this really happened. Felisa Cardona, Feds grill Nacchio judge's ex-wife, Denver Post, Aug. 14, 2007; .Judge
issues statement on strip club visits, Summit Daily News (AP), Aug. 11, 2007. But though it was boorish behavior—
giving new meaning to the phrase, “sober as a judge”—it was perfectly legal.
191 The oath of office—which has not changed since 1791, Judiciary Act of 1789, 1 Stat. 73 (Sept. 24, 1789), leaves a
clear road map for judges to follow. For instance, Chief Justice Marshall observed that a court has “no more right to
decline the exercise of jurisdiction which is given, than to usurp that which is not given,” and to do so would consti-
tute “treason to the Constitution,” Cohens v. Virginia, 19 U.S. 264, 404 (1821)—which constitutes either an abuse of
office or willful refusal to exercise it. Similarly, the other Justice Marshall opines that the "essence of equal justice under
law" is that "[t]he principles which would have governed with $10,000 at stake should also govern when thousands have
become billions." Pennzoil Co. v. Texaco Inc., 481 U.S. 1, 27 (1987) (Marshall, J., concurring). When a judge treats
claims brought by a pro se litigant in a cursory manner, but gives an oligarch represented by Theodore Olsen the
limousine treatment, s/he has failed to “do equal right to the poor and to the rich,” which is a form of tyrannical partiality.
192
The lower-court ruling is even more surreal. In deliberate disregard of Jacobs v. United States, 290 U.S. 13, 16
(1933) (Fifth Amdt. takings clause is an implied waiver of immunity), the scholarship of Antonin Scalia, Antonin Scalia,
Historical Anomalies in Administrative Law, Y.B. Supreme Court Hist. Soc’y. 103 (1985) (“[a]t the time of Marbury v.
Madison there was no doctrine of domestic sovereign immunity, as there never had been in English law”; emphasis in
original). and the canon of common sense, Judge Ketanji Brown Jackson effectively declared that the Bill of Rights
may be voided by Congress (or judges) because the Framers failed to enact an Eleventh Amend- ment declaring that
"we really, really, REALLY DO mean it!" An annotated version of that ruling is available on Scribd at
https://www.scribd.com/document/387987194/Smith-v-Scalia-Ketanji.

50
must be an ‘incident’ power to ‘carry the law into execution’ if ‘good behavior’ is not to be an
impotent formula."193 Someone has to be able to do it.
During his Opening Statement, Judge Kavanaugh warranted that he would “do equal right to the
poor and to the rich.”194 And when he ascended to the federal bench, he presumptively swore out an
oath to do so. But as Smith v. Scalia proves beyond cavil, his solemn word is worse than useless.
All he could say in response to this unprecedented outrage was this:
Appellant’s claims appear to be based entirely on his dissatisfaction with acts taken by
appellees in their capacity as judges, and he has identified no cause of action that allows him
to bring any such claim.
The first half of that sentence begs the question of what we, as litigants, have a right to expect
from a judge, whether that. be Brett Kavanaugh or any other federal judge entrusted with the cases
we bring before them. And we can turn to no less an expert than one Brett M. Kavanaugh. To hear
him tell it, we have the right to expect a judge who
• Has “given it [his] all in [my] case,”
• Will “stand behind” his or her work, and not hide behind a weaselly per curiam opinion,
• “Interpret[s] the Constitution [and statutes] as written, informed by history and tradition and
precedent,”
• Is aware that “the rules of legal interpretation are rules of common sense,”
• Is “a neutral and impartial arbiter who favors no litigant or policy,”
• Doesn't “make decisions to reach a preferred result,”
• “make[s] decisions because “the law and the Constitution, as we see them, compel the
result,”
• “will keep an open mind in every case,” and
• “will do equal right to the poor and to the rich.”195
In short, we have a right to the Judge Kavanaugh who testi-LIED before the Judiciary Committee,
as opposed to the one that has infested the federal bench, and who is responsible for the abortion
that is Smith v. Scalia.
The second half of that sentence is conclusive evidence that Kavanaugh didn’t give it his all,
stand behind his work, interpret the Constitution as written, or anything else he told the Judiciary he
does. The cause of action and its elements are stated with clarity in Carey v. Piphus, 435 U.S. 247
(1978): All a plaintiff need show is that s/he had a right to procedural due process, and that this right
was violated. In a case where a judge sits in judgment of his own cause, both elements are met on
the face of it. A plaintiff doesn’t even have to prove damages. Id. at 266-67. And if Mr. Kavanaugh
and his colleagues had bothered to read the briefs, he would have known this.

193
Raoul Berger, Impeachment: The Constitutional Problems (2d ed.), 132 (Harvard U. Press 1999).
194
Brett Kavanaugh’s Opening Statement to Senate Judiciary Committee, CNN, Sept. 4, 2018.
195
Brett Kavanaugh’s Opening Statement to Senate Judiciary Committee, CNN, Sept. 4, 2018.

51
 Moreover, had he read the briefs he would have discovered that our laws as written actually DO
provide an array of remedies for litigants justly aggrieved by judicial misconduct. But that would
have required work, and beer and baseball tend to get in the way. This case, and Brett Kavanaugh’s
demonstrable abdication of his sworn duty to “administer justice without respect to persons, and do
equal right to the poor and the rich,” reveal two of the ugliest secrets of the American judiciary.

Our Courts’ Hyper-Partisanship Renders the Law Uncertain

Judicial decisions, like the Constitution itself, are nothing more than “parchment barriers,”
5 Writings of James Madison 269, 272 (G. Hunt ed. 1901). Both depend on a judicial culture
that understands its constitutionally assigned role, has the courage to persist in that role when
it means announcing unpopular decisions, and has the modesty to persist when it produces
results that go against the judges’ policy preferences.
--Antonin Scaliaiii
In his Opening Statement to the Judiciary Committee, Kavanaugh averred that “The Supreme
Court must never be viewed as a partisan institution.”196. But that ship sailed long ago. Whereas

196 Brett Kavanaugh’s Opening Statement to Senate Judiciary Committee, CNN, Sept. 4, 2018.

52
Thomas Paine proudly proclaimed “that in America THE LAW IS KING,”197 Richard Posner of the
Seventh Circuit admits that the law’s once-vast kingdom “has shrunk and greyed to the point where
today it is largely limited to routine cases.” 198 And this has been going on for decades. While he is
an originalist on the rubber-chicken and book tour circuits, Justice Scalia was about as faithful to
his originalism as Tiger Woods was to ex-wife Elin: his ”faint-hearted originalism”199 translates
reliably to ”originalism, if it yields the answer I want.” Justice Thomas could have been the last
best hope for the comatose ‘rule of law’ in this land, being the most willing of any Justice to overturn
bad precedent,200 but his definition of ”bad precedent” appears to be” outcomes that I don’t like. But
truth be told, this is how it has always been:
With disarming candor Justice John Marshal Harlan (grandfather of the present Justice
Harlan) told a class of law students: “I want to say to you young gentlemen that if we don't
like an act of Congress, we don't have much trouble to find grounds for declaring it
unconstitutional.”201
Since John Marshall wrote a twenty-five page opinion in Marbury v. Madison that could have
been written in two, judges have been reaching for the Ring of Power with all the determination of
Gollum. And we usually hear it from the losers. As Judge Kozinski observes, “As guardians of the
Constitution, we must be consistent in interpreting its provisions. Expanding some to gargan-tuan
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 prefer-ences.”202
The why motivating judges is painfully obvious: craven self-interest. As one of nine Supreme
Court justices, Roberts, Thomas, and especially Scalia are treated like legal rock stars. People pay
good money to hear what they have to say. And at least some Justices are aware that they aren’t
doing their jobs. Justice Kennedy is reported to have responded angrily to a noted critic: "If you
guys want us to do it right, we’d need 1,000 more judges." 203 The status quo provides judges with
what Judge Bork called an “intellectual feast,” 204 and if judges had to do real work for what Chief
Justice Roberts complains is a relative pittance,205 their job satisfaction would plummet. Through

197
Thomas Paine, Common Sense 36 (P. Eckler Co. 1918) (1776) (emphasis in original).
198
Richard Posner, How Judges Think 1 (Harv. U. Press 2008).
199
See, Randy Barnett, Scalia's Infidelity: A Critique of Faint-Hearted Originalism, 75 U. Cin. L. Rev. 7, 13 (2006)).
200
See Ken Foskett, Judging Thomas: The Life and Times Of Clarence Thomas 281-82 (Harper Collins, 2004)
(quoting Scalia).
201
Alphaeus Thomas Mason, The Supreme Court from Taft to Warren vii (La. St. U. Press, 2d ed. 1968) (emphasis
added).
202
Silveira v. Lockyer, 328 F.3d 567, 569 (9th Cir. 2003) (Kozinski, J., dissenting from den. of reh. en banc; citations
omitted).
203
Frank J. Murray, Justices to Review Access to Opinions, Wash. Times, Oct. 27, 2000, at A8.
204
Elena Kagan, For Justice Marshall, 71 Tex. L. Rev. 1125, 1127 (1993) (relating comment of Judge Bork, and Jus-
tice Marshall’s disdain for it).
205
According to Roberts, allegedly inadequate judicial compensation “‘has now reached the level of a constitutional
crisis that threatens to undermine the strength and independence of the federal judiciary,” [adding that] ‘[i]t changes
the nature of the federal judiciary when judges are no longer drawn primarily from among the best lawyers in the
53
the dead hand of self-interest, American judges have “made this case their own.” 206 And, as Judge
Kozinski concedes, "Judicial ethics, where it counts, is hidden from view, and no rule can possibly
ensure ethical judicial conduct." 207
It is common knowledge that Justices Gorsuch, Kavanaugh, and Barrett were elevated to the
Supreme Court to inter the administrative state and overturn Roe v. Wade. By his own admission,
Gorsuch is an originalist. 208 At his confirmation hearing, in response to questioning, Kavanaugh
agreed that he was, as well.209 And Barrett makes three. 210 But as an originalist myself, I find it
impossible to make a coherent originalist argument for overturning Roe.
Specifically, Barrett asserts that judges should be bound by the words of the Constitution, and
the meaning of those words should be determined solely based on how they were understood when
they were added to the Constitution. And herein lies the problem: The federal government can only
do what we empower it to do, and the Fifth and Fourteenth Amendments only protect the life
interests of “persons,” U.S. Const. amend. V; XIV, § 1, and a fetus was not a person, either in 1791
or 1868. Nor is it a “person” under Mississippi law; we know because Mississippi TRIED to make
it one in 2011—tried, and failed.211
If, as Barrett avers, the “constitutional text means what it did at the time it was ratified and that
this original public meaning is authoritative,”212 that should be the end of the case. But we all know
that like their guru Antonin Scalia, they will deposit their originalism in the round file, and do what
they were hired to do—the Constitution, rule of law, and their solemn oaths be damned.

practicing bar.’” Linda Greenhouse, Chief Justice Advocates Higher Pay for Judiciary, N.Y. Times, Jan. 1, 2007,
available at http://www.nytimes.com/2007/01/01/us/01scotus.html?_r=0 (limited on-line access available).
206
Hon. John T. Noonan, Jr., Making the Case One’s Own, 32 Hofstra L. Rev. 1139, 1141 (2004).
207
Alex J. Kozinski, The Real Issues of Judicial Ethics, 32 Hofstra L. Rev. 1095, 1106 (2004).

208
Neil Gorsuch, Why Originalism Is the Best Approach to the Constitution, Time, Sept. 6, 2019, at
https://time.com/5670400/justice-neil-gorsuch-why-originalism-is-the-best-approach-to-the-constitution/

209
Eric Segall, Does Originalism Matter Anymore?, N.Y. Times, Sept. 10, 2018, at
https://www.nytimes.com/2018/09/10/opinion/kavanaugh-originalism-supreme-court.html

210
Ian Millheiser, Originalism, Amy Coney Barrett’s approach to the Constitution, explained, Vox, Oct. 12, 2020, at
https://www.vox.com/21497317/originalism-amy-coney-barrett-constitution-supreme-court

211
Mississippi ”Personhood Amendment” fails at polls, CBS, Nov. 9, 2011, at
https://www.cbsnews.com/news/mississippis-personhood-amendment-fails-at-polls/
212
Ian Millheiser, Originalism, Amy Coney Barrett’s approach to the Constitution, explained, Vox, Oct. 12, 2020, at
https://www.vox.com/21497317/originalism-amy-coney-barrett-constitution-supreme-court (quotng Barrett).
54
 Our Courts Need an Enema
The Justices have enabled their once-august body to become an unelected and unaccountable
wholly-owned subsidiary of the Republican Party. And in doing their masters’ bidding, they have
freed themselves from the tethers of the plain text of the Constitution, the Framers’ pellucid intent,
and the time-honored canons of judicial interpretation. They have perverted the law by transparently
replacing their judgment with a raw exercise of will, to the point where our true rulers are nine
people in black dresses.
The most pressing problem is the one no one is talking about. The vast majority of Americans
cannot get a meaningful day in federal court because the courts don’t have the time or patience to
hear their claims. And the only way you can fix that problem is to hire a lot more judges.
As everyone has noticed by now, we no longer have judges. We have Republican judges and
Democratic judges, and the outcome of many cases depends primarily on the luck of the draw. At
the Supreme Court level, if you are a Democrat, you are basically screwed.
But at the Supreme Court level, you can fix this with 51 votes in the Senate. First, you strip the
Supreme Court of all power of appellate review. Next, create a national court of appellate review,
with judges chosen at random from the ranks of existing Article III judges, to be given seats on a
staggered four-year basis. Have mundane reviews adjudicated by three-judge panels, with en banc
panels of nine chosen to handle important ones.
As a federal judge would rather sodomize her daughter’s corpse than yield a scintilla of the power
‘The Tribe’ has wrongfully arrogated unto themselves, they cannot be trusted to reform themselves.
But the Framers’ remedies for this intolerable state of affairs already exist in black and white in the
plain text of the Constitution, and can be effectuated with simple well-designed legislation:
1. Strip the Supreme Court of all power of appellate review, investing it in a new National
Court of Appellate Review populated by Article III judges serving on a rotating basis;
2. Creating a Good Behavior Court officiated by veteran lawyers to punish judicial abuses of
office;
3. Increasing the number of Article III judgeships by 300-500%, and
4. Expressly restoring citizens’ authority under the Seventh Amendment to decide questions of
fact AND law.
As there is no constitutional prohibition against private criminal prosecution and civil suits
against judges for damages resulting from acts of willful misconduct, these remedies are already
available or at least would be, but for our judges’ unabashed contempt of the rule of law. Codify
them, to ensure that they can’t be interpreted out of existence.
Problem solved.
Respectfully submitted, Ken Smith

55
i
Obergefell v. Hodges, No. 14-556, 576 U.S. __ (2015) (Scalia, dissenting; slip op. at 2).

George Carlin, YouTube video at ~7:45 (undated), available at https://www.youtube.com/watch?v=hWiBt-pqp0E (in

ii

re: internment of Japanese-Americans in World War II).

iii
Michigan v. Bryant, 562 U.S. 344, 131 S.Ct. 1143, 1176 (2011) (Scalia, J., dissenting).

56