Friday, October 20, 2006

Back to the Good Old Populist Days of Kicking Court Butt

Brian Tamanaha

What stands out most in John Yoo's WSJ Op-Ed on the Military Commissions Act is not his legal analysis, but the triumphalist populist posture he strikes against the court. "The new law is, after all, a stinging rebuke to the Supreme Court." "This time," Yoo editorializes, "Congress and the president did not take the court's power grab lying down." Yee hah, that'll show the uppity SCOTUS.

The pending South Dakota initiative to amend the constitution to remove protections from judges--ominously entitled "The J.A.I.L. Amendment"--is redolent of the same attitude. It creates a Special Grand Jury comprised of citizens to hear challenges to court decisions. The judge's immunity may be removed for any of a long list of violations, including "delibertate disregard of material facts, judicial acts without jurisdiction, blocking the lawful conclusion of a case..." The Grand Jury is also empowered to indict the judge on criminal charges, and it operates retroactively (applying to past judicial decisions).

It has a number of deliciously nasty provisions. Funding for the Grand Jury--whose members are to be paid at a pro-rated amount equal to that of Circuit Court Judges--is to be provided by "deducting one and nine-tenths percent from the gross judicial salaries of all judges." Another provision says that "No judge complained against, or sued civilly by a complainant pursuant to this Amendment, shall be defended at public expense or by any elected or appointed public counsel, nor shall any judge be reimbursed from public funds for any losses sustained under this Amenment."

In other words, the judges will in effect be funding the tribunal against them, but none of their expenses incurred in defending against a complaint--even when the judge prevails!--can be paid out of public funds.

Here's an especially fun provision. Judges are generously given an opportunity to appear before the Special Grand Jury to respond to a complaint. But the proposed Amendment explicitly adds:

All allegations in the complaint shall be liberally construed in favor of the complainant. The Jurors shall keep in mind, in making their decisions, that they are entrusted by the People of the State with the duty of restoring judicial accountability and a perception of justice, and are not to be swayed by artful presentation by the judge.

Beware those tricky artful presenters. The judiciary is full of them! Current polls suggest that the amendment will likely pass on Nov. 7th--representing another victory for the People against the judiciary.

Kicking court butt is a time-honored, populist national sport. Who can forget the good old days of the impeachment threats and physical threats against the Warren Court. This American tradition goes way back.

Consider one especially creative attack. In 1824, angry at several decisions of the high court, the Kentucky legislature passed a law abolishing the old court, and set up a new one with the same name, then appointed all new judges. Both courts refused to recognize the other, and both proceeded to hear cases and render decisions. Lower courts and litigants were in a state of uncertainty until the matter was finally resolved several years later. (For anyone interested, Simeon Baldwin recounts this event in The American Judiciary (1905), p. 114-16).

You gotta love the good old populist American sport of kicking court butt, nowhere done with more creativity and righteous enthusiasm than in this great country committed to the rule of law. Societies that don't respect the rule of law shoot, imprison, disappear, buy off, summarily replace, or use some other illegal method to take care of judges perceived as problematic.

But we respect the rule of law, so we take care of judges perceived as a problematic legally, by removing their jurisdiction, or by abolishing them, or by making them subject to oversight bodies. And because it's done by legal means, it's of course legal, and that's what the rule of law is all about, right?

Now let's go out and kick some more court butt, legally of course.


There will always be a tension between necessary judicial independence to make unpopular, though legally grounded, decisions and judicial accountability for abusing the office by acting extralegally from the bench.

Generally, judicial oversight bodies are next to useless in this regard. In one way they are the same as legislative ethics committees, which are at loathe to take on of their own to task.

I would suggest that the best means of accountability would be to use the constitutional check of impeachment. This avenue has been all but closed in the past because it was generally limited to criminal conduct by the judge, not abuse of power. However, impeachment would provide accountability from outside the judiciary, but permit more deliberation than some grand jury.

Its also a retroactive amendment, and applies not only to judges, but to "juries, school boards, city councils, county commissions, or in similar capacities, and prosecutors".

Jail4judges headed by Ronald Branson got it on the ballot in South Dakota. There's also info at

Psittakos said...

Amendment E, incredibly enough, seems to be supported by a large majority, nearly 70% of likely voters in South Dakota, with a somewhat greater percentage of Democrats in favor than Republicans. Also, lower income voters are much more likely to support it than those with higher incomes. (All of this is from a Zogby poll.) So what are we to make of this shining example of democracy in action?

It appears like that what Bar Associations defend as "judicial independence" appears to a vast majority of folks in North Dakota to be unaccountable arrogance. Rather than calling a bipartisan super majority of 70% of North Dakota stupid, maybe we in the legal profession ought to take a hard look at what is causing this kind of a backlash.

Out here in Colorado, the Bar is fighting an initiative requiring a retroactive 10 year term limit for judges and taking away the right to choose judges from a bar committee and giving it to the Governor on the ground that it is also "an attack on judicial independence.. However, I imagine that it too will pass in a landslide.

>>maybe we in the legal profession ought to take a hard look at what is causing this kind of a backlash.

Hysterical right-wing attacks on the courts? Christianist fundamentalists who don't like court decisions? Yeah, we should take a hard look at that.

Here is an example of the kind of high handed politics on the Colorado courts which is fueling a petition to term limit judges and amend the state constitution to protect petitions from judicial vetoes.

Illegal immigration and its associated costs is a very hot political issue here in Colorado. A very hard core petition to punish businesses who hire illegals and to force the state government to identify and deny all non mandatory benefits to illegals garnered twice the usual amount of signatures and would very likely have passed if allowed to a vote.

However, the state supreme court barred the illegal immigrant petition, claiming that it violated the single subject rule. This specious and obviously political ruling came under fire from both sides of the political divide because it was such a blatant effort to derail a petition which the justices found to be personally objectionable. Indeed, the outcry was so large that the Governor had to call the Legislature into special session to address the illegal immigrant issue.

We risk legitimate judicial independence when the courts engage in this sort of outlaw policy making from the bench to thwart the popular will.

I am sure some similar incidents in North Dakota set off that sage brush rebellion against the courts. People do not invest the time and money into things like this unless something has mightily ticked them off.


i'm not a colorado resident, and i have not read the background on either the illegal immigration initiative you describe, nor the ballot initiative to limit the terms of judges in colorado. i don't have the time to look deeply into it, but based upon your description, i have a couple of observations:

first off, the idea of limiting the terms of judges is certainly better than the star chamber being proposed in south dakota. if i were practicing there, this would certainly have an extremely chilling effect on any decision i may make in the future regarding attempting to become a judge. i can imagine the future quality of the judiciary in south dakota if that ever passes. who on earth would ever want to be a public servant in that situation?

as for your colorado initiatives, your own description of the illegal immigrant petition shows judges doing their work properly, and exactly as conservatives say they want judges to act. i assume the single subject rule is on the books in colorado. i also assume it is there for a reason. your description of the illegal immigration initiative on its own shows the violation of the single subject rule, assuming that the initiative is as you describe it... subject one... punishing businesses that hire illegals... subject two... forcing the state government to deny all non-mandatory benefits to illegals. the first subject seeks to regulate private businesses. the second subject seeks to regulate the conduct of government. these are two clearly different topics simply bound by the fact that they both deal with the topic of illegal immigration, but in very different ways directed to very different targets.

it seems to me, admittedly without reading the court's opinion, but based simply upon your description of it that the court simply read the law as it stands and made a straight forward ruling based upon colorado law. i thought that is what conservatives scream for judges to stick to... or is it more of the same nonsense that when you rule in my favor you are strictly interpreting the law, but when you rule against me you are playing politics and being "activist".

finally, it would seem to me that if the ruling in the case were that the initiative violated the single subject rule, what was wrong with simply going back and presenting two intiatives on the ballot, one directed to punishing businesses who hire illegals, and the other to force state governments to deny non-mandatory benefits to illegals? the fact that the reaction is to place an initiative on the ballot to limit the terms of judges, retroactively at that, rather than address the objections of the judicial panel and conform the initiative to state law says to me that the proponents of both the illegal immigration initiative and the term limitations initiative are not serious about either issue, but simply want to make some noise and try to intimidate people.

Getting back to Yoo's op-ed, what is remarkable (if unsurprising) about it is that he actually refers to a "power grab," but ascribes it to the wrong branch. It is not, of course, the judiciary, but the executive, aided and abetted by a compliant, no longer coordinate, legislative.

Apart from that, of course, it's the usual unitary executive tripe.

I'm of two minds about this: on the one hand, the only thing that scares me more than near elderly, hopelessly out of touch judges making decisions for the rest of us is the ignorant, TV-news-watching public doing it. At least judges have been trained in actual law, with books and everything, most of the public knows only the parts of the law they see on TV (Court TV and the Law and Order shows).

On the other hand, judges should be accountable, not that they're not already. But it does seem that judges practically have to kill somebody right there in court to get kicked out.

Still, my default position is usually that anything politicians are in favor of is something I should be opposed to. If Republicans think judges are doing the wrong thing, the judges are probably doing OK, because the Republicans don't appear to be the best judges of character. They can't keep their hands off the teenaged pages, but the judges are making bad decisions?

I guess South Dakota is determined to make being a judge so unpleasant that nobody wants to do it and so they'll be drawing from the same lovely pool of applicants who now run the Congress, the various state legislatures, etc. Way to go, South Dakota. You'll be sorry.

Democracy and the republican form of government always seem like the worst form of government-- until you look at the alternatives. Well, South Dakota is about to provide an alternative to an democracy: judicial chaos. Expect a dictator to emerge.

If the people have no respect for the rule of law the rule of law will fail. If law doesn't reflect the will of the people as principle, then they won't respect the law.

It is not a matter for experts to discuss among themselves when expertise as such is the subject of discussion.

BDP writes: "We risk legitimate judicial independence when the courts engage in this sort of outlaw policy making from the bench to thwart the popular will.

I am sure some similar incidents in North Dakota set off that sage brush rebellion against the courts. People do not invest the time and money into things like this unless something has mightily ticked them off."

North/south mixup notwithstanding (and understandable, actually), Jail4Judges is where the entire impetus for the SD amendment "E" issue, and has nothing at all to do with what is facetiously refered to as "outlaw policy making from the bench". J4J, based in California, provided the lion's share of resources (money, materials, and people) for SD amendment E.

The strength of support for such a self destructive amendment is more a sign of resources pured into the state by J4J than 'outlaw judges'.

"Bart" DePalma says:

I would suggest that the best means of accountability would be to use the constitutional check of impeachment. This avenue has been all but closed in the past because it was generally limited to criminal conduct by the judge, not abuse of power.

That's soooooo "pre-1998". Lewinsky changed everything. In a New World threatened by by the horrors of preznitdential hummers, we have to relax the old rules, and impeach people just because we don't like 'em.

For those that protest that the Republicans really did care about "crimes" (and ignore the fourth article of impeachment that was pushed by the rabid Republicans), I'd point out that Starr studiously avoided any mention of materiality (and U.S. v. Gaudin) in his Starr Repornt, and the Republicans looked the other way and kept saying "but ... but ... but ... he lied under oath!!!"


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