The Pathos of Politics – The Courts

The Courts

“Courts are odd, in that they are part of the government, but, to judge fairly, must be to some extent independent of it.” ~ American political scientist Phillips Shivley

“Fairness is what justice really is.” ~ SCOTUS Justice Potter Stewart

Courts adjudicate and determine remedy for property transgressions. If the property is a human body, violation of rights falls under criminal law. Otherwise, until a property violation is criminalized, disputes are a civil matter.

“Injustice anywhere is a threat to justice everywhere.” ~ Martin Luther King, Jr.

United States

The judicial Power of the United States shall be vested in one supreme court, and in such inferior courts as the Congress may from time to time ordain and establish. The judicial power shall extend to all cases, in law and equity, arising under this constitution, the laws of the United States, and treaties made. ~ US Constitution, Article 3, §§1-2

The US operates a complex hierarchical system of courts at the local, state, and federal levels.

As every state is a separate political entity, each operates its own court system. Local courts handle municipal laws. There are also jurisdictionally overlapping regional (county) and state-level trial courts. Each state has an appellate supreme court.

The federal judiciary is divided into 94 districts, with each state having at least 1 district. The US territories of Guam, Northern Mariana Islands, and the US Virgin Islands each comprise a judicial district. These districts are divided into 12 regional circuits, each of which has an appellate court.

The legal process in the United States is a complicated matter of applying ambiguous legal codes to specific cases. It is an eminently subjective process that aspires to objectivity in the name of justice. ~ American sociologists Margaret Anderson & Howard Taylor


The Court of Appeals for the Federal Circuit (CAFC)  has appellate jurisdiction over patent law cases tried at the district level, cases tried by the Court of International Trade (CIT), and those appealed from the Court of Federal Claims (CFC). The cit hears international trade and customs cases.

The CFC hears money claims against the federal government, involving areas such as taxes, contracts, pay, intellectual property, and native American rights. The CFC may also hear cases referred to it by either house of Congress. The CFC has concurrent jurisdiction with district courts when the claim is for less than $10,000.

The CAFC came into being in 1981. Prior to that, patent appeals from district courts were made to their respective circuit appellate courts. The different regions created such an incoherent jumble of case law as to make a mockery of the pretense of predictability. Whence the CAFC, which has created its own inconsistent cacophony – all the better to exercise bias and have something to point to for legalistic backup.

Supreme Court

The high court’s role is to interpret the law – nothing else. ~ American attorneys Sarah Turberville & Anthony Marcum

All US courts – state and federal – fall under the aegis of the Supreme Court of the United States (SCOTUS), which is led by a Chief Justice. SCOTUS selects the cases which it cares to hear of those appealed to it.

Judges would like to have the public believe that they are above politics and are deciding cases purely on the basis of the law. This is a useful myth for legitimizing the actions of the court. ~ English political scientist Alan Ball & American political scientist Guy Peters


The judiciary is beyond comparison the weakest of the three departments of power. ~ Alexander Hamilton in 1788

The US constitution left the expanse of the courts’ power vague. What the framers deliberately withheld from the courts was power that was purely political, such as the forthright ability to veto or revise legislation. The judicial exercise was to be limited to settling disputes.

The Court from the outset has confined itself to its judicial duty of deciding actual cases. ~ SCOTUS Chief Justice Charles Evans Hughes in 1910

When the supreme court first convened in 1790, it was so ill-esteemed that its justices frequently resigned in favor of other pursuits. John Jay, the 1st chief justice, quit the court to become Governor of New York. Offered the post after Jay departed, Alexander Hamilton declined, preferring his law practice and political activities.

As James Irdell observed when stepping up from being a state court judge to SCOTUS in 1790: “the duty will be severe.” The 1789 Judiciary Act required that supreme court justices personally sit on circuit courts that had been set up throughout the country. As travel was arduous at the time, the imposition of circuit duty was onerous.

Justices were relieved of sitting on circuit with the 1801 Judiciary Act, which provided for creating and staffing 6 circuit courts.

Originally a bench of 6, the number of supreme court justices fluctuated in the early 19th century before settling at 9 in 1869. Of the 114 justices in the court’s history, only 6 have not been white men (4 women, 2 blacks).

 Tied Votes

A tie in the supreme court lets a ruling from the court below stand. A SCOTUS tie vote is a non-ruling which does not bind lower courts, nor has any precedent value. In other words, a tie acts as if the supreme court never heard the case. If ties commonly occur, they lessen SCOTUS’ esteem in the public eye, by poignantly pointing out that the law is ultimately just politics under a veneer of justice.

In February 2016, Justice Antonin Scalia died. He was firmly in the right-wing camp of a court that was often divided, with a single swing vote deciding rulings on a 9-seat bench. Scalia’s departure spelt a divided court.

As 2016 was a Presidential election year, and partisan politics was in play even more than usual, the Republican-controlled Congress refused to consider any successor candidate put forth by a president in the opposition party. Republicans absurdly posited that the post should remain vacant for over a year, until the next president took office and Congress could confirm a new jurist.

A string of tied votes would sow legal confusion. By letting lower court decisions stand but not requiring other courts to abide by the ruling, different jurisdictions could have various interpretations of constitutional law. It would mean a broken justice system (worse than it already was, at any rate). So, the supreme court gummed itself up by not taking cases. There was at least unanimity in doing nothing.

In the early 20th century, justices decided 200 or more cases a year. The workload declined to ~150 by the 1980s, then plummeted to ~80 rulings annually by the end of that decade.

2000–2015, the cases taken by SCOTUS numbered in the 70s. In 2016, it was a small fraction of that. Then, with a new justice confirmed in 2017, the high court got back to its normal slackness.


The supreme court has no way to force its dictates on society. Whether its decisions “stick,” or dissipate in empty air, depends on the reaction of society. ~ American historian Lawrence Friedman

Article 6 of the US constitution declares the document “the supreme law of the land,” to which judges, legislators, and “executive officers” must be bound.

The constitution gave the courts power to adjudicate “controversies” to which the federal and state governments were a party, those between or among states, and those involving “citizens or subjects.”

Where the constitution was stunningly silent was in how conflicts involving the different branches of the federal government were to be resolved. The constitution was also dumbly mute about who had the power to interpret it. This left issues about the fundamental powers of the judiciary unstated; and, more critically, no mechanism for resolving the inevitable contentions among men in power who asserted authority from their respective realm.

A curious case came along in the early 19th century which gave the supreme court the opportunity to declare itself a power equal to that of the other branches of the federal government. It did so only through meticulous legal dissection by then Chief Justice John Marshall, still the longest-serving head jurist in the country’s history, and one its most astute.

  Marbury v. Madison (1803)

A law repugnant to the constitution is void. ~ SCOTUS Chief Justice John Marshall in Marbury v. Madison

The Federalist and Democratic-Republican parties dominated national politics in the late 18th and early 19th centuries. The 1800 election between incumbent Federalist President John Adams and D–R candidate Thomas Jefferson was bitter and close. The electoral college vote tied.

Picking the President fell to the House of Representatives. Only after 36 ballots was Thomas Jefferson declared the winner.

In what would become a long-standing tradition, Adams attempted to pack the federal judiciary with as many Federalist judges as he could before Jefferson took power. He started this process at the top: getting his secretary of state, John Marshall, installed as the Chief Justice of the United States.

Furthering that effort, Congress gave Adams the power to appoint justices of the peace for the District of Columbia. On the day before his term expired, 2 March, Adams appointed 42 “midnight judges,” which Congress approved the next day.

When Jefferson’s term began on 4 March, he ordered his new secretary of state, James Madison, not to deliver the commissions. Jefferson decided to view the commissions invalid unless delivered.

Having demonstrated his power, Jefferson ultimately let most of Adams’ appointees take their posts. One of the disgruntled few who were left out was William Marbury.

Marbury and 3 other spurned midnight judges petitioned the supreme court to order Madison to deliver the commissions. Under the 1789 Judiciary Act, SCOTUS had the power to issue the writ of mandamus (court order) that Marbury requested. Chief Justice Marshall issued the Court’s opinion on 24 February 1803.

By this time, the issue directly being decided was minor. Jefferson’s desire to reduce the number of justices of the peace had been confirmed. The Judiciary Act of 1801 had been repealed. And Marbury’s original term was half over.

To most people, irrespective of political affiliation, the case was moot. But Marshall recognized that he had the perfect case to expound a basic principle.

Marshall declared that Marbury had the right to receive the commission. Marshall further observed that the Judiciary Act clearly entitled Marbury to the requested writ of mandamus.

Marshall then played his ace in the hole. He noted that the constitution specified that “the supreme court shall have appellate jurisdiction” in “cases affecting public ministers.”

As SCOTUS did not have original jurisdiction – responsibility for an initial decision – under the constitution, Marbury could not go directly to the supreme court for a writ. He had to first go to a district court, and then appeal to SCOTUS if he lost at the lower tribunal.

Whence came the critical issue: would the court use the authority granted by the Judiciary Act, but denied by the constitution, to issue Marbury’s writ of mandamus? Marshall said no, it would not. Congress could not authorize something forbidden by the constitution.

Certainly, all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently, the theory of every such government must be, that an act of the legislature, repugnant to the constitution, is void. ~ SCOTUS in Marbury v. Madison

Wherefore, because the Judiciary Act was unconstitutional, it was unenforceable. With this, Marshall set forth for the first time the doctrine of judicial review of acts committed by the other branches of government; a reasonable but bold power grab upon which the constitution had nothing to say.

It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases must of necessity expound and interpret the rule. If two laws conflict with each other, the courts must decide on the operation of each. ~ SCOTUS in Marbury v. Madison

Marbury v. Madison was fortuitous. If Marshall had not self-consecrated review power in his magisterial manner, it may not have ever been insisted upon, as it was not until 1857 that the constitutional validity of a federal statute was next questioned.

The legislature is entitled to all the deference that is due the judiciary. ~ SCOTUS in Marbury v. Madison, back-handedly equalizing its own power with that of Congress


The American supreme court originally followed the British tradition of seriatim: each justice issuing his opinion. To mask atomic division, Chief Justice John Marshall instituted the practice of a single majority opinion.

Ogden v. Saunders (1827) was the only dissent Marshall had in a constitutional case. Despite being a dissent, it was his stated principle in that case to which the high court has since held as the standard to interpret the constitution:

To say that the intention of the instrument must prevail; that this intention must be collected from its words; that its words are to be understood in that sense in which they are generally used by those for whom the instrument was intended; that its provisions are neither to be restricted into insignificance, nor extended to objects not comprehended in them, nor contemplated by its framers – is to repeat what has been already said more at large, and is all that can be necessary. ~ John Marshall, in dissent in Ogden v. Saunders

The vast preponderance of dissents are soon forgotten; but some resonate through time, prophetically influencing future proceedings.

Dissent is the way the voice of prophecy is first heard. ~ American legal scholar Irving Dillard

Some critics view dissent as harmful to the law itself. If jurists cannot agree on what the law is, the public may lose respect for both the court and the law. That belief is far more widespread in Europe than in the US. Some countries have gone as far as to make it a crime for a jurist to publicly dissent.

If the authority of the Court is weakened by a dissent, it is probably because it ought to be weakened. ~ Justice Henry Billings Brown


SCOTUS first exercised its power to hold a state law unconstitutional in Fletcher v. Peck (1810), when Georgia was found to have violated the contract clause of the constitution. Fletcher was an early precedent for the sanctity of legal contracts and hinted that native Americans did not hold title to their own lands – a constraint fully realized in Johnson v. M’Intosh (1823), which held that private citizens could not buy land from indigenes.

The ability to rule on constitutional issues and overturn laws gave US courts considerable clout. That power ultimately stemmed from core political incompetency: originating with the vagaries of the constitution, coupled with the negligence of Congress in reconciling its intent with constitutional clauses.

 Political Question Doctrine

Marbury v. Madison involved the political question doctrine: whether the court system is the appropriate forum for political questions, not just legal ones. In that case, Justice Marshall drew a distinction between 2 different functions of the US Secretary of State: legalistic actions subject to court scrutiny, and, conversely, those beyond the judicial review, such as advising the President.

The doctrine is ground in the concept of separation of powers, particularly the federal judiciary’s desire to avoid inserting itself into disputes between the other branches of the federal government.

  Chevron v. NRDC (1984)

Following Marbury, US federal courts took it upon themselves to judicially review Congressional statutes for their constitutionality. The constitution was silent about how much leeway federal agencies had in acting when statutory bounds were ambiguous: the issue of administrative deference.

Chevron USA v. Natural Resources Defense Council (1984) was a landmark ruling by the supreme court, prompted by the EPA lessening the stringency of regulations related to air pollution after Ronald Reagan took office.

In Chevron, SCOTUS gave government agencies considerable latitude in resolving statutory ambiguity, which federal law regularly supplies in surfeit thanks to Congressional lassitude.

When a challenge to an agency construction of a statutory provision, fairly conceptualized, really centers on the wisdom of the agency’s policy, rather than whether it is a reasonable choice within a gap left open by Congress, the challenge must fail. In such a case, federal judges — who have no constituency — have a duty to respect legitimate policy choices made by those who do. The responsibilities for assessing the wisdom of such policy choices and resolving the struggle between competing views of the public interest are not judicial ones. ~ SCOTUS in Chevron USA v. NRDC (1984)

This clear articulation of administrative acquiescence was such that Chevron deference became a stock phrase in subsequent court rulings where the issue was relevant.


Courts ought not to enter this political thicket. ~ SCOTUS in Colegrove v. Green

In Colegrove v. Green (1946), the supreme court decreed that the federal judiciary had no power to interfere in issues related to apportionment of a state legislature. But then, in Baker v. Carr (1962), SCOTUS capriciously reversed itself.

Election districts are supposed to be fairly equal in the number of citizens they contain. Population shifts put them out of whack. States commonly redistrict based on federal population censuses.

Baker v. Carr arose because Tennessee had not bothered to redistrict for over 1/2 century, contrary to its constitution; the result being that Shelby County, which includes Memphis, was grossly underrepresented compared to rural counties.

Per Colegrove v. Green, Tennessee argued that this was not the Court’s business. After wrenching adjudication, the supreme court decided it was its business after all.

The mere fact that the suit seeks protection of a political right does not mean it presents a political question. Such an objection is little more than a play upon words. ~ SCOTUS in Baker v. Carr, politically playing upon words

A bare majority determined in Baker v. Carr the “one person, one vote” standard for legislative redistricting. This affected many state legislatures, which had not bothered with redistricting for decades, despite major population shifts.

Plaintiffs here invoked the right to vote and have their vote counted, but they are permitted to vote and their vote is already counted. The complaint being made here is that their vote is not powerful enough. They should seek relief in the legislative system, not the courts. ~ Justice John Marshall Harlan in dissent in Baker v. Carr

In Shelby County v. Holder (2014), the Republican majority of the supreme court approved Republican evisceration of the 1965 Voting Rights Act, which had thwarted state actions that suppressed voting.

Hubris is a fit word for today’s demolition of the Voting Rights Act. ~ Justice Ruth Bader Ginsberg, in dissent in Shelby County v. Holder, joined by Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan

  Bush v. Gore (2000)

With Bush v. Gore (2000), the SCOTUS Republican majority (5–4) picked the next president. They did so by interfering with a state election in Florida, stopping a recount of votes.

There is no justification for the majority’s remedy, which is simply to reverse the lower court and halt the recount entirely. ~ Justice Stephen Breyer, in dissent in Bush v. Gore

The Bush v. Gore decision was an abrogation of the political question doctrine, a denigration of case law, and a violation of the constitution – article II, §1, clause 2: “each state shall appoint, in such manner as the legislature thereof may direct, a number of electors….”

The extraordinary setting of this case has obscured the ordinary principle that dictates its proper resolution: Federal courts defer to state high courts’ interpretations of their state’s own law. This principle reflects the core of federalism, on which all agree.

Article II does not call for the scrutiny undertaken by this Court. This case involves nothing that warrants extraordinary action by this Court. ~ Justice Ruth Bader Ginsberg, in dissent in Bush v. Gore

 Racial Discrimination

The US supreme court has long favored whites and denied equal treatment under the law to blacks and minorities. Johnson v. M’Intosh (1823) illustrated how indigenes had no constitutional legal standing, nor property rights, in the view of SCOTUS. Black received a distinct drubbing.

  Dred Scott v. Sandford (1856)

2 clauses in the Constitution point directly and specifically to the negro race as a separate class of persons, and show clearly that they were not regarded as citizens of the government then formed. ~ SCOTUS in Dred Scott v. Sandford (1856)

In Dred Scott v. Sandford (1856), SCOTUS held that African Americans, whether enslaved or free, could not be American citizens, and therefore had no standing before federal courts. Further, the federal government had no power to regulate slavery.

The 1st section of the 2nd article of the constitution uses the language ‘a natural-born citizen.’ It thus assumes that citizenship may be acquired by birth. Of this there can be no doubt. At the time of the ratification of the Articles of Confederation, all free native-born inhabitants of the states, though descended from African slaves, were not only citizens of those states, but such of them as had the other necessary qualifications possessed the franchise of electors, on equal terms with other citizens. ~ Justice Benjamin Curtis, in dissent in Dred Scott v. Sandford

In sowing uncertainty about slavery in western states, the Dred Scott decision helped trigger the Panic of 1857. Hailed in Southern slaveholding society as a proper interpretation of the constitution, Dred Scott furthered societal splintering over slavery, and so fostered the Civil War a few years later. The Dred Scott decision was overturned by the 13th (1865) and 14th (1868) amendments.

  Yick Wo v. Hopkins (1886)

In response to a burgeoning influx of immigrant Chinese, white Californians passed a plethora of discriminatory laws from the mid-1850s. One such proscription was an 1880 San Francisco ordinance prohibiting operating a laundry in a wooden building without the consent of the Board of Supervisors.

While whites and Hispanics had no permit problems with their laundries, the Board refused all 200 Chinese applicants. A longtime laundry owner, Yick Wo, continued to run his business despite being denied a permit. He was arrested and convicted under the ordinance.

The supreme court reversed the conviction because the ordinance was administered in a discriminatory manner: a violation of the equal protection clause of the 14th Amendment. Yick Wo v. Hopkins was the 1st time SCOTUS inferred the existence of discrimination from data about a law’s application. Statistical data was again used in the 1960s to strike down statutes discriminating against black Americans.

Equal protection and security should be given to all under like circumstances in the enjoyment of their personal and civil rights. ~ SCOTUS in Yick Wo v. Hopkins (1886)

In the 21st century, the Republican majority of SCOTUS refused to apply similar statistical logic, thereby permitting gerrymandering, as the electoral fiddling favored Republicans.

  Plessy v. Ferguson (1896)

Louisiana passed a law in 1890 requiring that colored people ride in coaches separate from whites. Homer Plessy, who was 1/8th black by descent, violated the state’s Separate Car Act by insisting on taking a seat in the Caucasian coach. His uppitiness for equal justice made it the supreme court.

In Plessy v. Ferguson (1896), SCOTUS held that “separate but equal” was a suitable discrimination.

The enforced separation of the races neither abridges the privileges or immunities of the colored man, deprives him of his property without due process of law, nor denies him the equal protection of the laws. ~ SCOTUS in Plessy v. Ferguson (1896)

  Berea College v. Kentucky (1908)

Berea College was a private school, founded in 1855, which had the audacity to admit students regardless of race, and treat them without discrimination. The college’s home state, Kentucky, passed a law in 1904 prohibiting such equality in education. In Berea College v. Kentucky (1908), the supreme court affirmed that states have the power to make such prohibitions.

A corporation is not entitled to all the immunities to which individuals are entitled, and a state may withhold from its corporations privileges and powers of which it cannot constitutionally deprive individuals. ~ SCOTUS in Berea College v. Kentucky

Further, SCOTUS in Berea College made a strong legal distinction between corporations and individuals – a precedent which the supreme court would ignore 3 decades later and thereafter with its fawning for corporate power.


Separate but supposedly equal endured for nearly 6 decades, until overturned by Brown v. Board of Education of Topeka (1954), which held that “separate educational facilities are inherently unequal.”

  United States v. Cruikshank (1875)

The duty of a government to afford protection is limited always by the power it possesses for that purpose. ~ SCOTUS in United States v. Cruikshank (1875)

The 1872 Louisiana gubernatorial election was hotly disputed. On Easter Sunday on 13 April 1873, in the town Colfax, an armed militia of white Democrats attacked black Republicans, massacring 105 blacks and 3 whites.

Federal charges were brought against some of the white insurgents. Convictions were appealed to the supreme court.

Among the federal charges were violations of the 1st and 2nd amendments (1791): the right to freely assemble, and the right to keep and bear arms, respectively. Astonishingly, SCOTUS overturned the convictions, holding that protection clauses of the 14th Amendment (1868) applied only to state actions, not those of individual citizens.

The high court essentially established that the federal government does not protect its citizens. The plaintiffs had to rely upon state courts for protection, even as these courts never convicted white men for murdering blacks, then or in the century that followed.

For their protection in its enjoyment, the people must look to the states. ~ SCOTUS in United States v. Cruikshank (1875)

Federal troops were withdrawn from the Deep South in 1877. Elections there afterward were often fraught with fraud and violence, as whites suppressed black voting. Southern states passed laws to disfranchise blacks and poor whites. This political exclusion ostensibly lasted until after passage of federal civil rights laws in the mid-1960s but continues to present day through more devious means.

  Chae Chan Ping v. United States (1889)

The power of exclusion of foreigners being an incident of sovereignty belonging to the government of the United States as a part of those sovereign powers delegated by the constitution, the right to its exercise at any time when, in the judgment of the government, the interests of the country require it, cannot be granted away or restrained on behalf of any one. ~ SCOTUS in Chae Chan Ping v. United States (1889)

Chae Chan Ping was a Chinese worker in the US, laboring there for a dozen years before deciding to visit his homeland once again. In 1887, before leaving, he obtained a customs certificate entitling him to return to the US.

While Ping was gone, Congress amended the 1882 Chinese Exclusion Act to completely prohibit reentry of all Chinese who left the country, legal certificates allowing return withstanding. The amended Act violated treaties with China.

When he tried to return, Ping was refused entry into the US. His unsuccessful suit went to the supreme court, which unanimously affirmed the decision of the lower courts to keep the Chinese out. Contrary to supreme court mendacity, the constitution makes no mention of such exclusory power.

  Korematsu v. United States (1944)

Only a small percentage of Japanese Americans pose a potential security threat. The most dangerous are already known or in custody. ~ US Justice Department assessment in early 1942

Beginning in May 1942, 120,000 Japanese Americans were rounded up, dispossessed of their property, and forced into internment camps for the duration of the 2nd World War. 3 cases of relocation reached the supreme court. They were all decided the same way. There is a hoary legal adage that has been proven time and again: inter arma silent leges – “in wartime the law is silent.”

In Korematsu v. United States (1944), SCOTUS sided with the government in decreeing the constitutionality of detaining all Japanese Americans indefinitely without due process, regardless of citizenship.

All legal restrictions which curtail the civil rights of a single racial group are immediately suspect. Courts must subject them to the most rigid scrutiny. That is not to say that all such restrictions are unconstitutional. ~ SCOTUS in Korematsu v. United States

There was no legitimate constitutional basis for this SCOTUS decision. It was simple expediency.

The Justice Department admitted in 2011 that it deceived the Court in suppressing evidence that mass internment was not justified; so much for the Court’s “rigid scrutiny.”

Korematsu was gravely wrong the day it was decided, has been overruled in the court of history, and – to be clear – has no place in law under the constitution. ~ SCOTUS in Trump v. Hawaii (2018)

  Jones v. Alfred H. Mayer Co. (1968)

Title 42 of the US legal code deals with social welfare, public health, and civil rights. §1982 states that all citizens, regardless of race, can buy, hold, sell, and inherit real and personal property. In its original form, 42 USC §1982 was part of the Civil Rights Acts of 1866.

In Jones v. Alfred H. Mayer Co. (1968), SCOTUS determined the law constitutional. The ruling broadly held that Congress could regulate commerce to prevent racial discrimination as a valid exercise of the 13th Amendment (1865), which abolished slavery. Jones was a reversal of many of the Court’s precedents.

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A follow-on case, Runyon v. McCrary (1976), held that 42 USC §1981, popularly known as the “Ku Klux Klan Act,” prohibited private schools from discriminating on the basis of race. The Ku Klux Klan was a US white supremacy organization that first arose in the 1860s.

In 2003, SCOTUS would capriciously reverse itself once again.

  Grutter v. Bollinger (2003)

In Grutter v. Bollinger (2003), SCOTUS ruled 5–4 that universities may practice a race-conscious admissions process.

This is precisely the type of racial balancing that the Court itself calls “patently unconstitutional.” ~ Chief Justice William Rehnquist, in dissent in Grutter v. Bollinger

  McCleskey v. Kemp (1987)

Warren McCleskey, a black man, killed a white police officer while robbing an Atlanta bank. He was put to death for it, but not before his appeal went to the supreme court.

McCleskey presented statistical evidence that Georgia was racially discriminatory in its sentencing; that blacks killing whites were 4.3 times more likely to receive a death sentence than whites killing blacks. McCleskey argued that his sentence violated the 14th Amendment.

The supreme court majority was unmoved, dismissing such statistical generality as “an inevitable part of our criminal justice system.” The court inscrutably ruled that equal protection under the law required more than merely showing “discriminatory effect.” A petitioner must prove “discriminatory purpose” in a law or governmental act specific to the case – an impassable bar.

The Court today sanctions the execution of a man despite his presentation of evidence that establishes a constitutionally intolerable level of racially based discrimination leading to the imposition of his death sentence. ~ Justice Harry Blackmun, in dissent in McLeskey v. Kemp, joined by Justices Thurgood Marshall, John Paul Stevens, and William Brennan

 State Power

History teaches that grave threats to liberty often come in times of urgency, when constitutional rights seem too extravagant to endure. ~ Justice Thurgood Marshall

Throughout its history, the US supreme court has been a potent force in fortifying state power, particularly that of the federal government. SCOTUS has consistently affirmed the power of the state over people’s lives where the “public interest” is at stake. Almost never has the public interest not been at stake. One may reasonably wonder what is more paramount in the “public interest” than people’s lives. The SCOTUS answer is the interest of the state. The usage of the term “public” to infer citizens is a ruse.

  McCulloch v. Maryland (1819)

The Union is to have the power to pass all laws that may be necessary for carrying into execution the authorities with which it is proposed to vest it. ~ Justice John Marshall in McCulloch v. Maryland

In 1816, Congress chartered the Second Bank of the United States. Officers of the Baltimore branch engorged themselves on bank proceeds, to the loss of millions by investors in the Bank. Responding to this and other banking misdeeds, Maryland passed a tax on “foreign” banks in the state, of which the Second Bank was the only one.

As the Second Bank was Congress’s creature, SCOTUS punted Maryland’s tax. In doing so, the supreme court etched open-ended power in the federal government, particularly the purview of the legislature.

He would be charged with insanity who should contend that the legislature might not superadd to the oath directed by the constitution such other oath of office as its wisdom might suggest. ~ Justice John Marshall in McCulloch v. Maryland

McCulloch v. Maryland later played an essential role in redefining the scope of national power and justifying the emergence of the modern welfare state. ~ American law historian Maxwell Bloomfield

  Buck v. Bell (1927)

3 generations of imbeciles are enough. ~ SCOTUS in Buck v. Bell

English polymath Francis Galton coined the concept and term eugenics in 1883. Eugenics is a social philosophy advocating improvement in the genetic stock of humanity.

Eugenic principles date back to ancient Greece. The modern equivalent became popular in Britain in the early 20th century and spread from there. The Nazis practiced eugenics, as did over 30 US states. (Nazis on trial for war crimes after World War 2 cited the influence of American eugenics programs on their policies, specifically mentioning Buck v. Bell.)

Indiana passed the 1st sterilization statute in 1907. Virginia followed in 1924, authorizing compulsory sterilization of the feeble-minded. Virginia’s inclination to sterilize Carrie Buck for being “incorrigible” made its way to supreme court, which duly delivered its opinion that state-sanctioned sterilization did not violate the “constitutional right of bodily integrity.” (In a related case, SCOTUS held in Skinner v. Oklahoma (1942) that compulsory sterilization was unconstitutional if the law treated similar crimes differently.)

It is better for all the world if, instead of waiting to execute degenerate offspring for crime or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. ~ SCOTUS in Buck v. Bell, wholeheartedly endorsing eugenics

The Buck v. Bell ruling still stands and has been cited by courts in several cases as precedent for state power.

  Hans v. Louisiana (1890)

While the 11th Amendment (1795) forbade citizens of one state from suing another state, it said nothing about citizens suing their own state; the sort of thoughtless oversight so common when Congress acts. That left it to SCOTUS to resolve whether such a suit may be allowed.

A state cannot, without its consent, be sued in a circuit court for the United States by one of its own citizens. ~ SCOTUS in Hans v. Louisiana

In Hans v. Louisiana, SCOTUS expansively construed the 11th Amendment to have this intent. There was no legal basis for such a decision.

Citizens may sue their own state in state court but holding a state accountable for its abuses or injustice through the court system is practically impossible.

Hans v. Louisiana eviscerated the 4th Amendment (1791) by foreclosing the most effective means of enforcing the constitutional right against unreasonable search and seizure.

  California v. Hyatt (2019)

SCOTUS held that nothing “implicit in the constitution” treats states differently in respect to immunity than international law treats sovereign nations. To the contrary, the court in Nevada v. Hall observed that compelling states to grant immunity to their sister states would risk interfering with sovereign rights that the 10th amendment leaves to the states.~ Justice Stephen Breyer, in dissent in California v. Hall, joined by Justices Ruth Bader Ginsberg, Sonia Sotomayor, and Elena Kagan

The capriciousness of SCOTUS as a political body was once again laid bare in the 2019 ruling of California v. Hyatt, when the right-wing majority fortified states against accountability to citizens or other states.

In Nevada v. Hall (1979), SCOTUS ruled that each state could decide whether to grant or deny its sister states sovereign immunity. In 2019, the court reversed the decision 5–4, declaring that “states retain their sovereign immunity from private suits brought in courts of other states,” even when the other state considers the suit just, and so sanctions it.

It is one thing to overrule a case when it “defies practical workability,” when “related principles of law have so far developed as to have left the old rule no more than a remnant of abandoned doctrine, or when “facts have so changed, or come to be seen so differently, as to have robbed the old rule of significant application or justification.” It is far more dangerous to overrule a decision only because 5 members of a later court come to agree with earlier dissenters on a difficult legal question. The majority has surrendered to the temptation to overrule Hall even though it is a well-reasoned decision that has caused no serious practical problems in the 4 decades since we decided it. ~ Justices Breyer, Ginsberg, Sotomayor, and Kagan, in dissent in California v. Hall

In the majority opinion, Justice Clarence Thomas admitted the descent into lawlessness: acknowledging that SCOTUS was abandoning the bedrock legal doctrine of stare decisis, in which courts abide by settled law absent a good reason to overrule it.

  Morrison v. Olson (1988)

A government of laws means a government of rules. Today’s decision on the basic issue of fragmentation of executive power is ungoverned by rule, and hence ungoverned by law. ~ Justice Antonin Scalia, in dissent in Morrison v. Olson

The executive abuses of Republican President Richard Nixon provoked a reaction in the Democratic-controlled Congress, which passed the Ethics in Government Act in 1978. Among its precautions was establishing a US Office of Independent Counsel (OIC), tasked with investigating misconduct of federal officials.

In the early 1980s, President Ronald Reagan’s legal counsel, Theodore Olson, refused the release to Congress documents related to the administration’s enforcement of an environmental protection law. Congress appointed an independent counsel, Alexia Morrison, to investigate.

To thwart the investigation, Olson sued Morrison, arguing that the OIC was a constitutional violation in taking executive power from the President and creating a hybrid “4th branch” of government, ultimately answerable to no one.

The supreme court upheld the constitutionality of the Office of Independent Counsel, finding that the Act which spawned it did not “impermissibly undermine the powers of the Executive Branch.”

Justice Scalia was the sole dissenter who pointed out that “all of the executive power” resided with the President, not just “some.”

Scalia foresaw that the OIC would be used for partisan political purpose to inflict prosecutorial abuse on selected targets. Sure enough, both Congressional Democrats and Republicans have used the OIC at different times for political harassment of opponents.

  Jennings v. Rodriguez (2018)

The 5th Amendment says that “no person shall be deprived of life, liberty, or property without due process of law.” An alien is a “person.” To hold him without bail is to deprive him of bodily “liberty.” ~ Justice Stephen Breyer

Jennings v. Rodriguez illustrated the twisted logic by which SCOTUS supports state power.

The majority’s interpretation of the statute would render the statute unconstitutional. ~ Justice Stephen Breyer, in dissent in Jennings v. Rodriguez

8 USC §1225 authorizes immigration officials to detain noncitizens while the officials determine whether an alien may be “lawfully present in the country.” 8 USC §1226 authorizes detaining noncitizens already in the country.

It is clear that the 5th Amendment’s protections extend to “all persons within the territory of the United States.” But the Government suggests that those protections do not apply to asylum seekers or other arriving aliens because the law treats arriving aliens as if they had never entered the United States; hence they are not held within its territory. This last-mentioned statement is, of course, false. All of these noncitizens are held within the territory of the United States. ~ Justice Stephen Breyer, in dissent in Jennings v. Rodriguez

Alejandro Rodriguez was jailed under §1226, indefinitely imprisoned, and denied a court hearing that might have granted him release. A 5-to-3 SCOTUS majority had no problem with that. In effect, the supreme court ruled that noncitizens in the US had no civil rights.

The contortions needed to reach these remarkable conclusions are a sight to behold. ~ Justice Samuel Alito

 Deception Endorsed

Superman fought “the never-ending battle for truth, justice, and the American way”; a fictional account altogether, as truth and justice are not the American way; quite the contrary. Deception is a stock-in-trade of law enforcement; one which the courts, with their expansive moral lassitude, have come to heartily approve. (Superman himself was quite the deceiver: a man of steel with an ostensible cast-iron moral compass passing his days as mild-mannered Clark Kent.)

The 1892 SCOTUS case Bram v. United States established that “a confession, in order to be admissible, must be free and voluntary; that is, not be extracted by any sort of threats or violence, nor obtained by any direct or implied promises, however slight, nor by the exertion of any improper influence.” The next time SCOTUS took a case concerning confession, the manner of its extraction was of scant concern.

  Frazier v. Cupp (1969)

On 22 September 1964, 20-year-old Martin Frazier went to a bar with his cousin, John Rawls. There they met Russell Marleau. Marleau ended up dead shortly thereafter. On a tip, the police picked up Rawls and Frazier for questioning.

During the interrogation, police falsely told Frazier that Rawls had already confessed, and implicated him in the murder. Frazier denied any involvement, and said he wanted an attorney. Ignoring Frazier’s request for counsel by telling him “you can’t be in any more trouble than you are now,” the interrogation continued. Police eventually wore a confession out of Frazier, which was used to convict him at trial.

The illicitly obtained confession was sanctioned by the supreme court.

Where it is possible that the questioning officer took petitioner’s remark about seeing an attorney not as a request that the interrogation cease but as a passing comment, there was no denial of the right to counsel. On the facts of this case and in view of the “totality of the circumstances,” the trial court did not err in holding that petitioner’s confession was voluntary. Not every admission of inadmissible hearsay or other evidence can be considered to be reversible error. ~ SCOTUS in Frazier v. Cupp

  Miranda v. Arizona (1966)

Ernesto Miranda was a manual laborer with a chronic penchant for being on the wrong side of the law. His 1st conviction, for burglary, was when he was 14 years old.

On 3 March 1963, Miranda, then 22, kidnapped and raped 18-year-old Lois Ann Jameson. The police arrested Miranda 10 days later, after Lois’ brother recognized Miranda’s truck.

After 2 hours of grilling, Miranda confessed. His written confession stated that he did so “with full knowledge of my legal rights.” But the police had never told Miranda that he may remain silent or have an attorney present during questioning.

Miranda was sentenced to 20–30 years. While in prison, he filed a request for the supreme court to review his case, arguing that his 5th Amendment rights had been violated.

No person shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law. ~ US Constitution 5th Amendment (1791)

The ACLU stepped in to represent Miranda. (The ACLU is the American Civil Liberties Union, a civil-rights organization.) They won the case, but it did Miranda no good. He was retried without the confession and again convicted to the same sentence, thanks to testimony from his estranged wife.

On 31 January 1976, nearly 4 years after being paroled, Miranda got stabbed in a bar fight in Phoenix; whereupon he bled out and his raucous existence ended.

Mirada’s legacy was a mandatory advisement that police must give upon arresting someone, known as the Miranda warning:

The person in custody must, prior to interrogation, be clearly informed that he/she has the right to remain silent, and that anything the person says will be used against that person in court; the person must be clearly informed that he/she has the right to consult with an attorney and to have that attorney present during questioning, and that, if he/she is indigent, an attorney will be provided at no cost to represent him/her. ~ SCOTUS in Miranda v. Arizona (1966)

SCOTUS subsequently diluted Miranda rights, ruling 5–4 in Berghuis v. Thompkins (2010) that anything a suspect says may be used unless s/he has explicitly invoked the 5th Amendment. This effectively means that you have to know constitutional law, and its case law history, in order to obtain your inalienable constitutional rights.

  Oregon v. Mathiason (1977)

A woman in Pendleton, Oregon called the cops after something had been stolen from her home. The police asked if she suspected anyone. She said that Carl Mathiason, a parolee and “close associate” of her son, was the only one she could think of.

After phoning Mathiason several times to no avail, a police officer left his card at Mathiason’s apartment, along with a note asking him to call “to discuss something with you.” The 2 met at the local police station. The policeman lied to Mathiason in telling him that his fingerprints were found at the scene of the burglary. Mathiason then confessed to the theft. Mathiason was let go at the time, but later arrested, tried, and convicted.

On appeal, Mathiason’s attorney took umbrage that a confession had been wrung out based upon a lie about incriminating evidence that did not exist. The Oregon supreme court agreed, but a SCOTUS majority had no problem with the deception.

The privilege against self-incrimination “has always been as broad as the mischief against which it seeks to guard.'” Miranda v. Arizona (1966). Today’s decision means, however, that the 5th Amendment privilege does not provide full protection against mischiefs equivalent to, but different from, custodial interrogation. ~ Justice Thurgood Marshall, in dissent in Oregon v. Mathiason (1977)

  Martha Stewart

With court acquiescence, law enforcement officials at every level of government regularly coerce, lie, and misrepresent evidence to trick suspects into confession. Woe unto any citizen that appears to hedge on full disclosure, as American businesswoman Martha Stewart found out the hard way.

On 26 December 2001, Stewart sold her shares of ImClone stock the day before the bottom fell out. Through her stockbroker, who got wind that the FDA was going to reject ImClone’s cancer drug the next day, Stewart was advised to sell, which she did; nothing illegal about that.

Alas, Stewart was targeted by federal government officials looking to make names for themselves by taking down someone famous. Stewart told investigators that the stock sale was prearranged with her broker if it fell below $60 a share. Maybe Martha was telling the truth. But the feds convinced a jury that she had made a “false statement.” (Because Stewart wasn’t under oath at the time, perjury did not apply.) Lying to any federal official at any time is a crime.

Stewart served 5 months in federal prison, and another 5 months of home confinement. No justice was served.


Police lying is as old as policing itself. ~ American social activist and journalist Kali Holloway

In the US, and in many other countries, law enforcement is more properly called lie enforcement.

Every lawyer who practices in the criminal courts knows that police perjury is commonplace. Policemen see themselves as fighting a 2-front war: against criminals in the street and against ‘liberal’ rules of law in court. All’s fair in this war, including the use of perjury to subvert ‘liberal’ rules of law that might free those who ‘ought’ to be jailed. And even if his lies are exposed in the courtroom, the policeman is as likely to be indicted for perjury by his co-worker, the prosecutor, as he is to be struck down by thunderbolts from an avenging heaven. ~ American jurist Irving Younger in 1967

Police officers lying under oath in court is so common as to have been given a nickname by its practitioners.

We call it testilying. ~ New York City police officer Pedro Serrano

 Abduction for Trial

That government agents or their minions illegally abduct anyone anywhere and bring them before the court is quite alright in the “land of the free.” In Ker v. Illinois (1886), SCOTUS had nothing to say about snatching Frederick Ker in Peru to stand trial in the US.

How far forcible transfer of a defendant so as to bring him within the jurisdiction of the state where an offense was committed may be set up against the right to try him is the province of the state court to decide, and presents no question in which this Court can review its decision. ~ SCOTUS in Ker v. Illinois (1886)

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On 19 February 1942, Michigan police asked their colleagues in Chicago to arrest Shirley Collins and bring him to them. Though lacking warrants, neither police department had an issue with illegally abducting Collins, as well as beating him senseless on more than one occasion. Nor did the supreme court. Adhering to the principle male captus, bene detentus (badly captured, well detained), SCOTUS ruled that the government can bring any defendant to trial regardless of how he was seized.

That a person was forcibly abducted and taken from one state to another to be tried for a crime does not invalidate his conviction in a court. ~ SCOTUS in Frisbie v. Collins (1952)

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In United States v. Alvarez-Machain (1992), the illicit extradition of Mexican physician Humberto Álvarez Machaín for trial in the US was a non-issue to the supreme court with regard to jurisdiction; nor did they care what was done with him in the aftermath.

While respondent may be correct that his abduction was “shocking” and in violation of general international law principles, the decision whether he should be returned to Mexico, as a matter outside the treaty, is a matter for the executive branch. ~ SCOTUS in United States v. Alvarez-Machain (1992)

Machaín was acquitted by the local judge, who found that prosecutors had not presented a prima facie case for his arrest. As far as the federal government was concerned, Machaín was a simple case of catch-and-release, at great cost to an innocent man.

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Ramzi Yousef masterminded the 1993 bombing of the World Trade Center in New York City, then made his way to Islamabad. With the tacit cooperation of Pakistani police, US government agents took Yousef back to the US for trial without any messy extradition proceedings – a violation of both US and international law. No problem. Geographically challenged federal district court Judge Kevin Duffy, expounding on “universal jurisdiction,” ruled that Yousef had been “found within the United States.” The court of appeals did not disagree, nor the supreme court, which saw no reason to hear the case.

 Search & Seizure

During colonial times, British troops searched American homes anytime they liked, looking for anything they wanted. The experience so sensitized colonists that they proscribed the practice in their constitution.

The 4th Amendment (1791) aims at preventing unreasonable search or seizure by the government. Part of the Bill of Rights, it is one of the constitution’s basic protections against an avaricious police state.

4th Amendment case law initially hinged on property rights. In the early 20th century, decisions such as Olmstead v. United States (1928) held that 4th Amendment rights applied only to physical intrusion, not surveillance (e.g. wiretaps). Such narrowing was overturned in Katz v. United States (1967), which found that the 4th Amendment applied irrespective of technology. In a 2-faced ruling, though “a person has a constitutionally protected reasonable expectation of privacy,” “the 4th Amendment cannot be translated into a general constitutional ‘right to privacy.'”

The protection of a person’s general right to privacy – his right to be let alone by other people – is, like the protection of his property and of his very life, left largely to the law of the individual states. ~ Justice Potter Stewart in Katz v. United States

In Smith v. Maryland (1979), the court developed an absurd 2-prong test for whether the 4th Amendment applied: 1) “whether the individual, by his conduct, has exhibited an actual (subjective) expectation of privacy,” and 2) “whether the individual’s subjective expectation of privacy is one that society is prepared to recognize as reasonable.”

The essence of the 4th Amendment goes to which methods of evidence gathering are legal (absent a warrant from the court), and under what circumstances illegally gathered evidence may be used against an accused.

Case law established 4 main exceptions for the admission of tainted evidence (“fruit of the poisonous tree”): 1) the evidence was discovered in part via an untainted source, 2) the evidence would have inevitably been discovered, 3) the chain of causation between the illegal activity and the tainted evidence has “become so attenuated as to dissipate the taint” (the attenuation doctrine), or 4) a search warrant, though invalid on grounds of probable cause, was executed “in good faith” by government agents (the good-faith doctrine). Through illicit rationalization, SCOTUS case law has practically eviscerated the 4th Amendment.

  Pennsylvania v. Scott (1998)

Keith Scott was on parole in 1993 when he was arrested at a local diner by 3 parole officers. They took Scott to his mother’s home, where he lived.

When Scott’s mother got home, the officers searched Scott’s bedroom without consent and found nothing incriminating. They then searched an adjoining sitting room and found unloaded firearms and a bow and arrows, owned by Scott’s stepfather. Scott had no knowledge of these weapons before the search. The parole officers hauled Scott away and had him throw back in prison on weapons violation of his parole.

Scott’s appeal over 4th Amendment rights went nowhere. Evidence exclusion under the amendment only applies to criminal trials.

We have emphasized repeatedly that the government’s use of evidence obtained in violation of the 4th Amendment does not itself violate the constitution. We have repeatedly declined to extend the exclusionary rule to proceedings other than criminal trials. ~ SCOTUS in Pennsylvania Board of Probation and Parole v. Scott (1998)

Justice David Souter, in dissent, pointed out the obvious flaw in the majority’s logic.

In reality, a revocation proceeding often serves the same function as a criminal trial, and the revocation hearing may very well present the only forum in which the state will seek to use evidence of a parole violation, even when that evidence would support an independent criminal charge. The deterrent function of the exclusionary rule is therefore implicated as much by a revocation proceeding as by a conventional trial, and the exclusionary rule should be applied accordingly. ~ Justice David Souter, in dissent in Pennsylvania Board of Probation and Parole v. Scott

  Strieff v. Utah (2016)

To enforce the 4th Amendment’s prohibition against “unreasonable searches and seizures,” this Court has at times required courts to exclude evidence obtained by unconstitutional police conduct. But the Court has also held that, even when there is a 4th Amendment violation, this exclusionary rule does not apply when the costs of exclusion outweigh its deterrent benefits. ~ SCOTUS in Strieff v. Utah (2016)

In 2006, the Salt Lake City police department staked out a house for drug dealing after receiving an anonymous tip. Officer Douglas Fackrell stopped Edward Strieff shortly after he came out of the house.

During questioning, Fackrell relayed Strieff’s personal information to a dispatcher. This routine practice during police stops led to Fackrell learning that Strieff had an outstanding traffic warrant; whereupon Fackrell arrested Strieff and searched him, discovering a small amount of methamphetamine, for which Strieff was convicted for unlawful possession.

Evidence found during unlawful searches is supposed to be tossed out of court under the 4th Amendment’s exclusionary rule. Otherwise, the authorities would have every reason to benefit from unlawful searches, as in the instance of hapless Edward Strieff.

On appeal, Utah defended itself via the attenuation doctrine stated in Nardone v. United States (1939); the 5–4 Republican majority of the supreme court agreed.

The outstanding arrest warrant for Strieff’s arrest is a critical intervening circumstance that is wholly independent of the illegal stop. The discovery of that warrant broke the causal chain between the unconstitutional stop and the discovery of evidence by compelling Officer Fackrell to arrest Strieff. ~ Justice Clarence Thomas

Dissenters dissected the disembowelment of the 4th Amendment.

If a police officer stops a person on the street without reasonable suspicion, that seizure violates the 4th Amendment. And if the officer pats down the unlawfully detained individual and finds drugs in his pocket, the State may not use the contraband as evidence in a criminal prosecution. That much is beyond dispute. The question here is whether the prohibition on admitting evidence dissolves if the officer discovers, after making the stop but before finding the drugs, that the person has an outstanding arrest warrant. That added wrinkle makes no difference under the constitution.

Far from a Barney Fife-type mishap, Fackrell’s seizure of Strieff was a calculated decision, taken with so little justification that the state has never tried to defend its legality. ~ Justice Elena Kagan, in dissent in Strieff v. Utah

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This court has allowed an officer to stop you for whatever reason he wants – so long as he can point to a pretextual justification after the fact. That justification must provide specific reasons why the officer suspected you were breaking the law, but it may factor in your ethnicity, where you live, what you were wearing, and how you behaved. The officer does not even need to know which law you might have broken so long as he can later point to any possible infraction – even one that is minor, unrelated, or ambiguous.

Many innocent people are subjected to the humiliations of these unconstitutional searches. Unlawful “stops” have severe consequences much greater than the inconvenience suggested by the name.

This court has given officers an array of instruments to probe and examine you. When we condone officers’ use of these devices without adequate cause, we give them reason to target pedestrians in an arbitrary manner.

The indignity of the stop is not limited to an officer telling you that you look like a criminal. The officer may next ask for your “consent” to inspect your bag or purse without telling you that you can decline. Regardless of your answer, he may order you to stand “helpless, perhaps facing a wall with [your] hands raised.” If the officer thinks you might be dangerous, he may then “frisk” you for weapons. This involves more than just a pat-down. As onlookers pass by, the officer may “feel with sensitive fingers every portion of [your] body. A thorough search [may] be made of [your] arms and armpits, waistline and back, the groin and area about the testicles, and entire surface of the legs down to the feet.”

Even if you are innocent, you will now join the 65 million Americans with an arrest record and experience the “civil death” of discrimination by employers, landlords, and whoever else conducts a background check.

Anyone’s dignity can be violated in this manner. But it is no secret that people of color are disproportionate victims of this type of scrutiny. For generations, black and brown parents have given their children “the talk” – instructing them never to run down the street; always keep your hands where they can be seen; do not even think of talking back to a stranger – all out of fear of how an officer with a gun will react to them.

This case allows the police to stop you on the street, demand your identification, and check it for outstanding warrants – even if you are doing nothing wrong. You are not a citizen of a democracy but the subject of a carceral state, just waiting to be cataloged. ~ Justice Sonia Sotomayor, in dissent in Strieff v. Utah

 Congressional Power

The powers not delegated to the United States by the constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people. ~ US Constitution, 10th Amendment (1791)

Through case law, the 10th Amendment (1791) has largely been rubbed out via citation of the constitution’s commerce clause.

Under the Articles of Confederation, the constitution’s precursor, the regulation of commerce was left to the states. This scheme proved unworkable, because the individual states, understandably focused on their own economic interests, often failed to take actions critical to the success of the nation as a whole. The framers’ solution was the Commerce Clause, which, as they perceived it, granted Congress the authority to enact economic legislation “in all cases for the general interests of the union, and also in those cases to which the states are separately incompetent.” ~ SCOTUS in NFIB v. Sebelius (2012)

Congressional power to tax, spend, and regulate commerce is practically unlimited. The state may control people’s lives as it sees fit. The only exception to date is that the lazy may not be forced into economic activity, but they may be taxed for the privilege of doing nothing.

The Congress shall have power to regulate commerce with foreign nations, and among the several states, and with the Indian tribes. ~ US Constitution Article I, §8 (the Commerce Clause)

  Helvering v. Davis (1937)

In Helvering v. Davis (1937), SCOTUS held that Social Security, enacted in 1935, was a constitutionally permissible exercise of federal power for the general welfare, and therefore did not contravene the 10th Amendment.

Congress may spend money in aid of the ‘general welfare’. ~ SCOTUS in Helvering v. Davis

Helvering v. Davis and related cases gave Congress a practically limitless capability to tax and spend; a quid-pro-quo discretion that the courts refuse to review.

There is a middle ground or certainly a penumbra in which discretion is at large. The discretion, however, is not confided to the courts. The discretion belongs to Congress, unless the choice is clearly wrong, a display of arbitrary power is not an exercise of judgment. ~ SCOTUS in Helvering v. Davis

  Slaughterhouse Cases (1873)

Slaughterhouses in New Orleans so fouled the water supply with offal in the mid-19th century that the city suffered 11 cholera outbreaks 1832–1869.

Many of the slaughterhouses were outside city limits, and therefore outside New Orleans’ jurisdiction. The city asked the state to act, which it did: passing a law that allowed New Orleans to create a corporation that centralized all slaughterhouse operations in the city.

Butchers fought back in court, claiming a violation of the recently ratified 14th Amendment, guaranteeing that no “state deprive any person of life, liberty or property.” 3 cases were consolidated before the supreme court into the Slaughterhouse Cases (1873).

In a 5–4 decision, SCOTUS narrowly construed the 14th Amendment: stating that it only affected only US citizenship. The majority ruled that the 14th Amendment did not abridge the police powers of the state.

In dissent, Justice Stephen Field wrote that the Slaughterhouses majority opinion effectively rendered the 14th Amendment a “vain and idle enactment.”

Virtually no serious modern scholar – left, right, and center – thinks that Slaughterhouse is a plausible reading of the 14th Amendment. ~ American legal scholar Akhil Reed Amar

Home Building Association v. Blaisdell (1934)

Emergency does not increase constitutional power, nor diminish constitutional restrictions. Emergency may, however, furnish occasion for exercise of power possessed. ~ SCOTUS in Home Building & Loan Association v. Blaisdell

During the depths of the Great Depression, Minnesota, like several other states at the time, extended the time for people to redeem their home mortgages from foreclosure. This was, essentially, states acting to retroactively alter the terms of private contracts.

In Home Building & Loan Association v. Blaisdell, the supreme court upheld the state statute, reasoning that the dire conditions of the Great Depression “may justify the exercise of [a state’s] continuing and dominant protective power notwithstanding interference with contracts.” While Blaisdell itself was limited to an economic emergency, the emergency exception doctrine expanded dramatically during the 1930s.

The Blaisdell ruling blatantly violated the constitution’s contract clause.

No state shall pass any ex post facto law impairing the obligation of contracts. ~ US Constitution, Article 1, §10

  US v. Carolene Products (1938)

In US v. Carolene Products (1938), the supreme court continued expanding government power, and clarified the court’s accommodation with lawmakers. Caroline Products Company fell afoul of the 1923 federal Filled Milk Act, which forbade interstate commerce of milk adulterated with any fat other than milk fat. SCOTUS decreed the law constitutional, and in doing so gave to government the power to deal with rights not specifically enumerated in the constitution.

The ruling contained the most famous footnote in US constitutional law. Footnote 4 set forth standards for judicial scrutiny of legislation. The lowest was of laws that regulate commerce, which were considered copasetic if they could be related to a legitimate state interest: the “rational basis test.”

This decision meant that many New Deal programs which SCOTUS would have previously struck down as unconstitutional would henceforth pass muster. The persistence of the Great Depression had impressed the court.

The trend of Caroline Products was furthered in Williamson v. Lee Optical (1955), where SCOTUS held that state laws regulating business were subject to “rational basis” review; the court essentially presuming that such laws were legitimate; and thus the burden on those ensnared was to prove otherwise. The Williamson ruling approved an Oklahoma state law which required that optometrists be licensed.

  Wickard v. Filburn (1942)

The commerce power is not confined in its exercise to the regulation of commerce among the states. It extends to those activities intrastate which so affect interstate commerce, or the exertion of the power of Congress over it, as to make regulation of them appropriate means to the attainment of a legitimate end. ~ SCOTUS in Wickard v. Filburn (1942)

Roscoe Filburn was a farmer who grew wheat to feed to his livestock. In Wickard v. Filburn, the supreme court determined that Filburn’s self-sufficiency caused him to buy less wheat from outside suppliers; enough of an impact to subject Filburn to federal regulation under the constitution’s commerce clause. In permitting control of non-commercial activities, Wickard v. Filburn gave Congress the power to regulate anything it wants, under the guise of it being commerce.

  Gonzales v. Raich (2005)

In Gonzales v. Raich, SCOTUS ruled that Congress may criminalize marijuana even when states approve its use. This trumping of federal over state power violates the 10th Amendment. The court considered the Gonzales case under the constitution’s commerce clause, even though trade was not involved.

Certainly, no evidence from the founding suggests that “commerce” included the mere possession of a good or some personal activity that did not involve trade or exchange for value. In the early days of the Republic, it would have been unthinkable that Congress could prohibit the local cultivation, possession, and consumption of marijuana. ~ Justice Clarence Thomas, in dissent in Gonzales v. Raich


It is abundantly clear the constitution does not guarantee that individuals may avoid taxation through inactivity. ~ SCOTUS in NFIB v. Sebelius (2012)

In 2010, the Affordable Care Act (ACA), colloquially known as Obamacare, became law. Via a scheme involving mandatory private insurance, Obamacare attempted to provide nationwide healthcare coverage.

(Obamacare became law because the insurance industry allowed it. Unsurprisingly, Obamacare has proved a boon to insurance companies, which have been able to ratchet premium rates across the board, and so raise the cost of healthcare for all. Leaving healthcare to the private predations of corporations, including drug companies, has proved a most costly folly in America’s commitment to capitalism.)

In NFIB v. Sebelius, SCOTUS ruled 5–4 that people may be coerced by the state into buying health insurance or be penalized for not doing so. In other words, the legislature can compel commercial activity.

Exactions not labeled taxes are authorized by Congress’s power to tax. ~ SCOTUS in NFIB v. Sebelius

Yet, in the very same opinion, the supreme court majority stated that Congress cannot compel commercial activity.

To an economist, perhaps, there is no difference between activity and inactivity; both have measurable economic effects on commerce. But the distinction between doing something and doing nothing would not have been lost on the framers, who were practical statesmen, not metaphysical philosophers.

Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority. The individual mandate thus cannot be sustained under Congress’s power to “regulate Commerce.” ~ SCOTUS in NFIB v. Sebelius

There is no way to sensibly comprehend the paradoxical inconsistency which SCOTUS embraced in NFIB: splitting imagined hairs about the power of the legislative to coerce commerce. NFIB created contradictory precedents in the same ruling: proof-positive of a 2-faced, lawless supreme court.

 Eminent Domain

The right of eminent domain, that is, the right to take private property for public uses, appertains to every independent government. It requires no constitutional recognition; it is an attribute of sovereignty. The clause found in the constitutions of the several states providing for just compensation for property taken is a mere limitation upon the exercise of the right. ~ SCOTUS in Boom Co. v. Patterson (1878)

The right of eminent domain (aka expropriation) is the long-standing common law right of the state to take private land when it deems doing so to be in the “public interest.”

In Kelo v. New London (2005), SCOTUS gave cities carte blanche to cede private property to another private party if deemed in the state’s interest, such as furthering economic development. Kelo was a reaffirmation of Berman v. Parker (1954) and Hawaii Housing Authority v. Midkiff (1984), both of which granted government authorities eminent domain rights that essentially transferred ownership from one private entity to another.

This court long ago embraced the broader and more natural interpretation of public use as “public purpose.” Without exception, the court has defined that concept broadly, reflecting its long-standing policy of deference to legislative judgments as to what public needs justify the use of the takings power. ~ SCOTUS in Kelo v. New London (2005)

Condemning private property via eminent domain still requires the government to pay “just compensation.” This does not apply to “partial takings,” which does not take title, but does deprive a property of its economically useful value.

In 1986, David Lucas paid nearly $1 million for beachfront residential property on the Isle of Palms, a barrier island near Charleston, South Carolina. He intended to put houses there.

Less than 2 years later, Lucas’s property was deemed a “critical area” to prevent coastal erosion. No further development was permitted, nor was compensation forthcoming.

On appeal to the supreme court, Lucas v. South Carolina Coastal Council (1992) established the “total takings” test, which is used to determine whether compensation is merited. SCOTUS kicked the case back to the lower courts for reevaluation.

The property owner necessarily expects the uses of his property to be restricted, from time to time, by various measures newly enacted by the State in legitimate exercise of its police powers. While property may be regulated to a certain extent, if regulation goes too far, it will be recognized as a taking.

We have described at least 2 discrete categories of regulatory action as compensable without case-specific inquiry into the public interest advanced in support of the restraint.

The 1st encompasses regulations that compel the property owner to suffer a physical “invasion” of his property. In general (at least with regard to permanent invasions), no matter how minute the intrusion, and no matter how weighty the public purpose behind it, we have required compensation.

The 2nd situation is where regulation denies all economically beneficial or productive use of land. The 5th Amendment is violated when land use regulation “does not substantially advance legitimate state interests or denies an owner economically viable use of his land.” ~ SCOTUS in Lucas v. South Carolina Coastal Council (1992)

The Lucus ruling seems to suggest that compensation from the state may be had for partial taking. The 2001 supreme court ruling Palazzolo v. Rhode Island clarified that not to be the case.

In 1959, Anthony Palazzolo acquired waterfront property in Westerly, Rhode Island. In 1971, the state government decreed much of the property “protected coastal wetlands.” Only the uplands portion, 6.4% of the land, might be developed.

Palazzolo sued the government for “just compensation.” What he got was an enormous tab from his attorneys. SCOTUS ruled that compensation from the state was not owed because the landowner had not suffered “a deprivation of all economic value.”

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The exercise of eminent domain is not limited to real estate. The government may also confiscate personal and intangible property, including contract rights and intellectual property.

  Bennis v. Michigan (1996)

Who knows what evil lurks in the hearts of men? The Shadow knows! ~ The Shadow radio program (August 1930)

Tina Bennis had a sleazy husband. He drove the family Pontiac to the seedy side of town, where he picked up a prostitute and got it on in the front seat.

Observed by the police, Mr. Bennis was busted for indecency and the car confiscated. Mrs. Bennis sued to get the car back, which she had part ownership of.

This case of forfeiture without due process went all the way to the supreme court, which ruled 5 to 4 that the state could keep the car. In dissent, Justice Stevens displayed uncanny knowledge of the evil that lurks in the hearts of men.

For centuries, prostitutes have been plying their trade on other people’s property. Assignations have occurred in palaces, luxury hotels, cruise ships, college dormitories, truck stops, back alleys, and back seats. A profession of this vintage has provided governments with countless opportunities to use novel weapons to curtail its abuses. As far as I am aware, however, it was not until 1988 that any state decided to experiment with the punishment of innocent 3rd parties by confiscating property in which, or on which, a single transaction with a prostitute has been consummated.

The logic of the court’s analysis would permit the states to exercise virtually unbridled power to confiscate vast amounts of property where professional criminals have engaged in illegal acts. Neither logic nor history supports the court’s apparent assumption that complete innocence imposes no constitutional impediment to the seizure of property simply because it provided the locus for a criminal transaction. ~ Justice John Paul Stevens, joined by Justices David Souter & Stephen Breyer, in dissent in Bennis v. Michigan (1996)


There is a decent federal law on the books to allay the corruption of government officers: 18 USC §201. The courts won’t enforce it.

Public prosecutors are the law enforcement agent for the state. In Connick v. Thompson (2011), the Republican SCOTUS majority (5–4) made it next to impossible to hold prosecutors accountable for misconduct. Dissenting justices observed that “the evidence was more than sufficient that prosecutors were deliberately indifferent to what the law requires.”

In 2016, SCOTUS threw out the conviction of former Virginia governor Bob McDonnell for taking $175,000 in gifts and loans from a businessman in return for promoting his company’s dietary supplement. Since then, federal prosecutors have been stymied in bringing cases against corrupt public officials.

A great deal of corruption takes place through winks, nods, and tacit understandings – and that corruption is increasingly moving beyond the reach of the criminal justice system. Access to government power is more freely available than ever to those with the means to purchase it. ~ American criminal law professor Randall Eliason in 2018

 Corporate Power

It is the essence of revolutions of the more silent sort that they are unrecognized until they are far advanced. ~ American diplomat Adolf Berle & American economist Gardiner Means

The founding of the British colonies which revolted into the United States was an act of corporate power: the colonies were originally organized as corporations. (The 1st colonization of America, in 1607 at Jamestown, Virginia, was by employees of the Virginia Company, one of the earliest business corporations in England. The 2nd settlement, at Plymouth, Massachusetts, was another corporate endeavor.) The goal was to sprout profit, not succor liberty. Numerous distinctive features of the American constitution have their roots in the country’s corporate origins.

We, the people of the United States. ~ US Constitution preamble

The US constitution begins with a lie: “we the people.” When the constitution went into effect in 1789, blacks were not people, only property, and women were pretty much in the same boat. Most the people in the country the constitution did not recognize as such.

Whereas slavery was not outlawed until 1865, and women lacked suffrage until 1920, corporations as citizens was recognized in 1809, when SCOTUS granted corporate access to federal courts, in Bank of the United States v. Deveaux. A mere decade later, in Dartmouth College v. Woodward (1819), the supreme court clarified that corporations were people under the contract clause of the constitution (Article 1, §10, ¶1).

On the judges of this court is imposed the high and solemn duty of protecting, from even legislative violation, those contracts which the constitution of our country has placed beyond legislative control. ~ Chief Justice John Marshall in Dartmouth College v. Woodward (1819)

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The American constitution was silent on corporations. The founding fathers would have been aghast to think that the unfettered liberties and rights granted to “people” applied to corporations. In 1787, James Madison proposed that Congress be granted the authority to charter corporations, and so regulate their power, but the idea was defeated.

One reason that corporations were overlooked was that their public profile was slight. In the years preceding the constitutional convention, the tally of American business corporations was: 2 banks, 2 insurance companies, 6 canal companies, and 2 toll bridge operators. To secure their mission, a few colleges, all non-profit, were technically corporations, including Yale, Harvard, and Dartmouth.

Acutely aware of the colonies’ history, the nation’s founders were wary of concentrated power, including wealth. Thomas Jefferson condemned the “aristocracy of our monied corporations which dare already to challenge our government to a trial of strength and bid defiance to the laws of our country.” Madison fretted over “the indefinite accumulation of property” as “an evil which ought to be guarded against,” concluding that the “power of all corporations ought to be limited in this respect.”

Influential founder George Mason refused to sign the constitution partly because it did not do enough to guard against commercial monopolies. James Wilson, one of the original supreme court justices, warned that corporations “should be erected with caution, and inspected with care” lest “monopoly, superstition, and ignorance” be their “unnatural offspring.”

The expressed misgivings exaggerate the hostility that the founders had toward business. The men who chartered the constitution were among the wealthiest in America. Many held corporate stock as an investment. Worries over concentrated power simply shadowed the fact that the pursuit of profit was the backdrop behind the constitution.

When Jefferson penned his 1776 declaration in favor of “life, liberty and the pursuit of happiness,” what he had in mind for happiness was prosperity, not smiles. Practically, that meant property; but both Jefferson and Benjamin Franklin wanted to downplay protection of property as a goal of government. To be inspiring and not commercially crass, “happiness” made the grade in aspiring to claim independence.

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Corporations sought constitutional rights to fight laws and regulations that restrict business autonomy and cause clots in the flow of corporate blood: profit. They did so through the venue that consistently was the most responsive to their interests: the courts.

For most of American history, the supreme court failed to protect the dispossessed and the marginalized, with the justices claiming to be powerless in the face of hostile public sentiment. The court’s record on corporate rights was much different. The court has been decidedly favorable to business, regardless of whether the majority of justices was liberal or conservative. ~ American constitutional law professor Adam Winkler

By the turn of the 19th century, corporate power was already laying a heavy hand on public affairs. British hegemony in high gear – trying to thwart American trade with France – led to the War of 1812. Northern corporations, reliant upon trade with the Brits, opposed the war. This provoked a populist reaction, which culminated in the election of Andrew Jackson as president in 1828. Jackson’s anti-corporate campaign slogan was:

Equal rights for all. Special privileges for none.

Jackson was not against corporations; he just wanted to democratize them, so that entrepreneurs and small businesses could easily incorporate. Through appointments of federal jurists, Jacksonian populist sentiment seeped into the courts. It was a rare interlude of American courts not currying to corporate interests.

While the rights of private property are sacredly guarded, we must not forget that the community also have rights, and that the happiness and well-being of every citizen depends on their faithful preservation. ~ SCOTUS Chief Justice Roger Taney in Charles River Bridge Company v. Warren Bridge Company

Jackson’s appointment of Chief Justice, Roger Taney, echoed the founders, and Jackson’s, concerns of concentrated power. (Taney delivered the majority opinion in the Dred Scott case (1957), which decreed that blacks, as inferior beings, could not be citizens of the United States. Given that blacks vastly outnumbered whites in the Deep South, this too could be considered a concern of concentrated power, though the ruling was purely racist.) In Charles River Bridge Company v. Warren Bridge Company (1837), SCOTUS ruled that a grant of corporate status by a state did not deliver monopoly power. The 1839 SCOTUS decision in Bank of Augusta v. Earle announced a new approach to corporate rights: corporations may be treated as people in court, but their personhood was distinct from ordinary folk, as they enjoyed special legal privileges, notably limited liability.

A corporation is indeed a mere artificial being. ~ SCOTUS Chief Justice Roger Taney in Bank of Augusta v. Earle

In a series of cases between 1844 and 1853, the Taney court used corporate citizenship as a lever to limit corporate power. In Marshall v. Baltimore & Ohio Railroad Company (1853), SCOTUS made plain that corporations could be sued.

The 14th Amendment (1868) sought to heal the wounds of the Civil War by securing equal citizenship and legal protection rights for men regardless of race (women still being 2nd-class non-citizens). Of course, corporations wanted in on the act. In Pembina Consolidated Silver Mining Company v. Pennsylvania (1888), SCOTUS found corporations deserving the equal protection granted to (select) citizens by the 14th Amendment.

Corporate power reached a zenith toward the end of the 19th century, signified by the rise of trusts. Trusts were big business on steroids: monopolies controlling industries via corporate combination. Corporate misdeeds in every economic sector inspired a volley of laws. The antitrust cases which made it to the supreme court further defined the legal status of corporations.

Most important was whether corporations could be held criminally accountable. Astonishingly, the answer was not obvious. 18th-century jurist and legal scholar William Blackstone noted the long-standing notion that “a corporation cannot commit a crime in its corporate capacity.”

On behalf of his employer, Edwin Hale refused information to prosecutors in a federal corporate price-fixing investigation. In Hale v. Henkel (1906), SCOTUS ruled that the self-incrimination privilege afforded citizens by the 5th Amendment did not apply to corporations, but that corporations were protected under the 4th Amendment right against unreasonable search and seizure.

In Valentine v. Chrestensen (1942), SCOTUS found that commercial speech was not constitutionally protected. In Virginia Pharmacy Board v. Virginia Citizens Consumer Council (1976), a SCOTUS preponderance ruled that commercial speech was constitutionally protected… sort of, sometimes.

In concluding that commercial speech, like other varieties, is protected, we of course do not hold that it can never be regulated in any way. Some forms of commercial speech regulation are surely permissible. ~ Justice Harry Blackmun in Virginia Pharmacy Board v. Virginia Citizens Consumer Council (1976)

The sole dissent, Justice William Rehnquist, pointed out that the majority was contradicting precedent, and in doing so was writing constitutional law, not interpreting the constitution as written.

In First National Bank of Boston v. Bellotti (1978), a 5–4 majority of SCOTUS held that commercial free speech, in the form of money, was constitutionally protected under the 1st Amendment “because it furthers the societal interest in the ‘free flow of commercial information.'” In other words, money talks and there is no stopping it.

Once again in dissent, Justice Rehnquist stated the obvious: that commercial speech could be concentrated power.

States might reasonably fear that the corporation would use its economic power to obtain further benefits beyond those already bestowed. ~ Justice William Rehnquist, in dissent in First National Bank of Boston v. Bellotti (1978)

The supreme court did a zigzag on commercial speech in Austin v. Michigan Chamber of Commerce (1990), deciding that states could require corporations to funnel funds for their political commercial speech to a 3rd party, recognizing “the threat that huge corporate treasuries be used to influence unfairly the outcome of elections.”

Such caution was thrown to the wind in Citizens United v. Federal Election Commission (2010), when the SCOTUS Republican majority 5–4 found that “there is no such thing as too much speech.” The Citizens United decision was an about-face from the Court’s 2003 decision in McConnell v. FEC, which had held that certain restrictions on campaign contributions were constitutional.

We find no basis for the proposition that, in the context of political speech, the Government may impose restrictions. ~ SCOTUS in Citizens United v. Federal Election Commission (2010)

The dissenting minority expressed the same concern over concentrated power which the founding fathers had.

In the context of election to public office, the distinction between corporate and human speakers is significant. Corporations are not actually members of society. Because they may be managed and controlled by nonresidents, corporate interests may conflict in fundamental respects with the interests of eligible voters. The financial resources, legal structure, and instrumental orientation of corporations raise legitimate concerns about their role in the electoral process. Our lawmakers have a compelling constitutional basis, if not also a democratic duty, to take measures designed to guard against the potentially deleterious effects of corporate spending in elections. ~ Justice John Paul Stevens, in dissent, joined by Justices Ruth Bader Ginsberg, Stephen Breyer, and Sonia Sotomayor

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In a decision of startling breadth, the Court holds that commercial enterprises, including corporations, can opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs. ~ Justice Ruth Bader Ginsberg, in dissent in Burwell v. Hobby Lobby Stores, joined by Justices Sonia Sotomayor, Stephen Breyer, and Elena Kagan

In Burwell v. Hobby Lobby Stores (2014), the Republican majority of the supreme court (5–4) extended the 1st Amendment right of religious liberty to corporations: allowing businesses to deny serving, hiring, or selling to anyone because they consider it against their religion. (The 2018 SCOTUS ruling in Masterpiece Cakeshop v. Colorado Civil Rights Commission furthered the right of businesses to discriminate based upon religious belief.) In the collective mind of the American courts, the Hobby Lobby ruling completed the transformation of corporations from “a mere artificial being” to a full-bodied legal citizen. The “aristocracy of monied corporations” which Thomas Jefferson and other founding fathers feared was realized through the caprice of a judiciary in thrall to business interests.


Confiscation to benefit corporations has been a common practice in patent law, albeit as an underhanded exercise. Patent law is illustrative of the quality of US legislation and the federal bench.


Intellectual property is granted governmental protection to certain abstractions, notably creative works (copyright), commercial brand names (trademark), and technical inventions (patents).

Patents were intended to engender innovation, and so stimulate a nation’s economic engine. Instead, they have been a drag on innovation, especially in the computer era.

Most computerized devices and software incorporate hundreds of patented inventions. Established corporations with extensive patent portfolios are thus able to stifle competition in their product space, thereby retaining oligopolistic power. The so-called “sport of kings” thwarts the intended purpose of patents.


The modern concept of patents dates to 1421. The city-state of Florence, Italy granted the 1st recorded patent to Italian engineer Filippo Brunelleschi for his design and use of a ship, the Badalone (“seagoing monster”).

The Badalone was supposed to ferry supplies up the Arno river to the city for building the Florentine cathedral dome, which Brunelleschi designed. Alas, the Badalone sank during delivery of a load of white marble for making the dome.

The Venetian Senate passed the 1st patent law in 1474, granting monopolies for a limited duration for original devices. This law embodied the principles of patent protection as practiced today.

In 1449, King Henry IV of England granted that country’s 1st patent for stained-glass manufacturing. A patent was a government-granted monopoly, so could be as much a right to manufacture or trade as well as the right to deny others to do so. Toward the end of the 16th century, the Crown’s corrupt abuse of granting monopolies provoked the evolution of the rule of law and judicial power at the expense of the monarch, and set the country on the path to civil war.

 US Patent Law

Article 1 of the US Constitution enshrined the right of Congress to grant copyrights to writers and patents to inventors.

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries; ~ US Constitution, Article 1, §8 (The sloppiness of §8, such as granting exclusivity to “discoveries,” not inventions, is typical of the intellectual laxity found throughout the US Constitution, which is a pathetic document in being overly specific in places, utterly omissive of major mechanics, such as the role of the courts, and ladled with significant vagary.)

The 1st US patent act was in 1790. It was a formula for discontent for all concerned: satisfying neither patent applicants nor those appointed to grant patents: the Secretary of State, assisted by the Secretary for War and Attorney General. No appeal was possible.

The Patent Act of 1793 was a response, not so much to patent applicant complaints, but for the benefit of the high government officials whose precious time was drained by patent examination duties. While a patent office was ostensibly set up, patent examination went from rigid strictness to no examination at all. The State Department could not refuse to issue a patent.

It was left to the courts to settle the inevitable disputes. As a consequence, patent fraud became endemic, prompting the Patent Reform Act of 1836.

The 1836 Act created an official patent office, and instituted examination for inventiveness in light of prior art: previously published technological exposition that might show a claimed invention as not novel. The 1836 Act, for the first time, let foreigners file for patents in the US.

Finally, the 1836 law began the patent numbering system. Patent number 1 was granted on 13 July 1836.

Title 35 of the US Code (USC) specifies patent law. It has 37 chapters, with 376 sections (§), of which 149 are used.

35 USC §101 delimits what may be patented.

Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title. ~ §101

Sections 102 and 103 require that a claimed invention be novel. §102 entitles a patent unless it was patented, described, publicly used, or on sale before an applicant claims it. The stricture of §102 is termed anticipation.

103 broadens the restrictions of §102 by adding that a patent may not be had “if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious to a person having ordinary skill in the art to which the claimed invention pertains.” The prohibition of patent grant via §103 is termed obviousness.

The critical statutory sections for obtaining a patent are broadly worded, and therefore have often required interpretation by the courts. This is common in US federal laws, and of the constitution.

Specificity commonly enters statutes only where a special interest desires a clear exception or exemption. Most legislation on commerce is drafted by corporate lobbyists. The sections of patent law dealing specifically with pharmaceuticals is exemplary: craftily worded to give advantage to domestic drug companies.

Intellectual property, especially patents, is an area of US law in which the courts have seen fit to legislate from the bench without being contradicted by Congress. Considering the economic significance of patents, this is astonishing (except when considering that the courts and Congress are aligned in their complicity with corporations).

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Besides making inventions proprietary for a limited duration, a supposed purpose of the patent system is to serve as a public-notice function: to let those know of inventions so that they may be best employed. The greatest of ironies evolved in that regard.

The courts came to regard knowing of a patent and infringing it to be willful disregard, and thereby increased the damages a company must pay to compensate the inventor. Hence, other than checking to see if they could patent an idea, companies studiously ignored patents granted to others. Hence, the critical public-notice function that patents could provide to promote invention was defeated by judicial idiocy.

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Throughout American history, the rigor of patent examination has ranged widely, from literally granting every patent applied for to strict examination. Examinations were lax in the 1990s, and only began to tighten up after publicity about how pathetic the patent office had become.

Absurd patents abounded. In 1993, the patent office issued patent 5,443,036: its invention was using a laser pointer to exercise a cat. US patent 6,368,227 claimed a “method of swinging on a swing.” Though they proved an embarrassment to the patent office when publicized for granting such dross, these junk patents had piddling value.

The real problem, from a corporate perspective, was that individual inventors were innovating lucrative inventions. A small industry of contingent-fee lawyers sprang up to help patent holders monetize their patents against major corporations. The big money was in software technologies, where skillful designers could patent inventions via the investment of nothing more than deep technical knowledge coupled with sheer creativity. (Of course, inventions always spring from skill and creativity. The difference between software and other art areas is that the cost of experimentation to verify practicality is exceedingly low for software.)


From the early 1990s, Microsoft was continually hounded by inventors for infringing software patents. In some instances, Microsoft blithely stole technology.

Such was the case with Stac Electronics’ disc compression utility. Microsoft aborted negotiations with Stac to license their technology. Instead, Microsoft simply stole the technology, incorporating it into their new operating system.

Stac sued for patent infringement and won. Microsoft, despite having examined Stac’s code, was able to skirt the charge that their infringement had been willful, which might have trebled damages. In the finale, Microsoft settled by investing in Stac and buying it off for ~$80 million.

In response to being pummeled for patent infringement, computer companies, Microsoft most prominently, lobbied Congress for legislation to relieve their patent infringement blight. They blitzed the media to generate publicity for their cause.

Computer companies generated the myth of evil “patent trolls” practicing extortion – which was really nothing more than inventors wanting payment for their inventions being infringed: the basic right of the patent grant, with compensation being the common practice in the country for 2 centuries.

Politicians took up the cudgel with toothless sympathy. The courts more effectively responded to corporate complaints by changing the law from the bench. Patents became much more difficult to obtain and enforce in the early 21st century.

No area of law has been so radically altered by the courts as patent law. This owes to a combination of factors: lack of statute specificity, and the nature of patents, but particularly the pro-corporate corruption prevalent in the courts. In the instance of patents, through extra-legal rulings, courts are able to achieve outcomes that legislation simply could not, as such blanket bias in statute would be so glaring as to incite revolt.


Corvids are able to solve complex problems entirely with mental prowess; no need for fiddling about. In contrast, the limitations of the human mind mean that improvements are commonly found by trial-and-error. Compared to crows, people are bird-brained.

Hence, throughout history, human invention has almost always been incremental. Innovation has often been had by combining features appreciated before only in disparate contexts.

Analysis and combination necessarily underlies all inventions. ~ Abraham Lincoln

The most significant blow to patents as intellectual property came with the 2007 SCOTUS decision in KSR v. Teleflex, where the court threw away the need for evidence in invalidating a patent. KSR’s insidiousness came via dealing with inventions that arose from novel combinations of known functions.

Prior to KSR, the CAFC had required some scintilla of statement that prior art technologies might be combined to invalidate a later claim to invention. This had proved inadequate to staunch the assertion of patents against the mega-corporations that the federal government succored; so, the supreme court threw open the door to judicial caprice by entirely removing any evidentiary standard whatsoever.

A court must ask whether the improvement is more than the predictable use of prior art elements according to their established functions. The analysis need not seek out precise teachings directed to the specific subject matter of the challenged claim, for a court can take account of the inferences and creative steps that a person of ordinary skill in the art would employ. ~ SCOTUS in KSR v. Teleflex (2007)

Under the KSR regime, ~95% of granted patents might seem obvious in light of prior art. KSR provided a clear signal to lower courts that they had the power to kill patents willy-nilly. In promoting plutocracy, the courts did just that.

 Active Toolbar Tool Groups

Bill Gates’ Microsoft struck it rich by providing the operating system (OS) for the IBM PC (personal computer), released in 1981. Microsoft’s OS embraced no innovation. Following hoary tradition, the IBM PC required users to type in commands to get anything done. Its graphic capabilities were laughably crude.

Popular computing evolved from command-line input to a graphical user interface (GUI) with the introduction of the Apple Macintosh computer in 1984. Computer graphics and GUIs were by no means new, but until that time, no inexpensive personal computer employed graphics to allow users to see and easily select various functions.

Apple’s Steve Jobs had been impressed by the GUI technology he saw when he visited Xerox’s research lab in Palo Alto, California. He copied many of the ideas he saw at Xerox for the Macintosh personal computer. Besides a keyboard, the Macintosh tacked a mouse onto the computer, letting a user move an onscreen cursor to select graphic objects and make things happen.

Microsoft copiously copied Apple, coming out with its Windows OS, with an inferior GUI, in 1985. From that rather lame copycat beginning, Microsoft ceaselessly made its GUIs more sophisticated, until it went thoroughly schizophrenic about its GUI with Windows 8.

The original GUIs had menus of commands that were listed on a bar that hung at the top or bottom of the screen. In the early 1990s, Microsoft came up with the idea of a toolbar: a visible row of iconic buttons, whereupon a user simply needed to click a button to do something, such as open or save a file.

In allowing feature activation in a single click, toolbars were more accessible and convenient than drop-down menus. They quickly became a GUI norm on both the PC and Macintosh. Microsoft patented its many toolbar inventions over the next decade.

Toolbars became cluttered with a plethora of tools, lessening their convenience. Microsoft came up with the idea of visually segregating toolbar groups. What could be done to a document (e.g., open, save, print) constituted one discernable toolbar group. Editing tools for the contents of a document were another such tool group.

The problem with application programs, and the importance of toolbars, was in organizing the plethora of functions on offer. The answer lay in hierarchical categorization: presenting the most important tools on first display, with the option to see secondary tools in each functional group.

With much ballyhoo, Microsoft introduced a new kind of toolbar with its 2007 Office, which it called a “ribbon.” For the first time, this new toolbar had tool groups that were active. A user could click in a specific area of a tool group and more functions and options for that group would appear. This allowed a nesting of tool functions: simplifying the look of the toolbar while making readily accessible a fulsome complement of tools.

Microsoft promoted this new toolbar technology. It quickly became an industry standard, as the advantage of “active tool groups” was readily apparent.

Microsoft filed a patent application for this active tool group feature in 2004; but Microsoft did not invent active tool groups.

American software developer and inventor Gary Odom had come up with the idea of active toolbar tool groups 3 years earlier, in 2001. Odom filed an application with the patent office and prosecuted (argued for) it himself. The result was US patent 7,363,592.

After Office 2007 came out, with active tool group technology widely used in commercial software products, Odom sued numerous software companies for infringing his ‘592 patent, including Microsoft. Like many other contemporaneous inventors asserting their patents, Odom confronted a debacle that exemplified how US federal courts toady to corporate interests, disregarding the law to do so.

At Microsoft’s urging, the federal district court found ‘592 obvious in light of Microsoft patent 6,057,836, where Jude Kavalam was the 1st-named inventor.

Kavalam had noted that “toolbars typically present groups of command buttons”; the very tool groups on a toolbar which Odom referred to in his patent, as shown below. Both Odom and Kavalam used identical nomenclature.

Odom was well aware of the ‘836 Kavalam patent: he disclosed it to the patent office during prosecution of the patent that led to its grant. The patent office allowed Odom’s patent over Kavalam, as Kavalam’s disclosure explicitly went to toolbar innovations, not the active toolbar tool groups which Odom claimed.

The district court ostensibly came to its conclusion of obviousness by confusing toolbar and tool group, something which was distinctly delineated in both Kavalam’s and Odom’s patents. Further, the court ignored 2 very telling, legally-compelling, secondary indicators of non-obviousness: 1) that Microsoft itself thought that the invention was patentable, by evidence of Microsoft later filing its own claim to the same technology; and 2) the commercial success of Microsoft’s 2007 toolbar “ribbon” indicated non-obviousness.

Microsoft did not even contest Odom’s arguments about secondary non-obviousness indicators, so comfortable were they that the judge was in their corner; this despite there being established case law that such indicators could be dispositive with regard to the obviousness of a patent.

Evidence of secondary considerations may often be the most probative and cogent evidence in the record. It may often establish that an invention appearing to have been obvious in light of the prior art was not. This court has previously identified, inter alia, commercial success, satisfaction of a long-felt need, and copying to be relevant factors. ~ the CAFC in Spectralytics v. Cordis (2011)

That evidence is ‘secondary’ in time does not mean that it is secondary in importance. ~ SCOTUS in Graham v. John Deere Co. (1966)

That 2nd indicator of non-obviousness – commercial success – went to the root of the problem for Odom. The claimed invention, which quickly became an industry standard, was immensely valuable: worth over a billion dollars in reasonable royalties over the life of the patent. So, federal district court Judge Michael Mosman ignored the law and decreed ‘592 obvious. In doing so he legally contradicted himself, construing the claimed invention differently for infringement vis-à-via validity. Mossman rigged the outcome every way he could.

Mosman is somewhat typical of those on the federal bench, in having amassed a track record as a clueless adjudicator of patent cases: unable to properly construe claims or write decent decisions. On appeal, the CAFC has repeatedly had to send cases back to Mosman to clean up his mess.

As with judges who easily follow their biases, the button-down Mormon Mosman had displayed distaste for Odom’s patent assertion from the get-go. He blithely indulged his corruption, as the corrupt do.

Mosman is by no means alone. Many judges struggle with patent cases. Involving both complex case law and technological detail, patents are one of the most difficult areas of law. Over 1/3rd of all district court decisions are at least partly reversed upon appeal.

Judges are seldom the sharpest tacks in the lawyer box. Unsurprisingly, that distinction generally goes to attorneys that represent corporate interests. (Follow the money.) Exceptions are found in exceptional attorneys who take the high moral ground and represent the public interest, such as Ralph Nader.

Alas for Odom, the fix was in. The CAFC affirmed the lower court’s decision, especially affronted that Odom alleged bias by Mosman. Like Mosman, the appeals court ignored cogent arguments that ‘592 was not obvious under the law.

The CAFC found ‘592 “an insignificant advance over Kavalam.” Secondary considerations of non-obviousness were “weak.” That was all the analysis the CAFC could muster.


The theft of Odom’s patent by swindling courts was no isolated incident. In the early 21st century, the courts stole hundreds of billions of dollars from inventors by declaring their patents obvious, or through other chicanery.

SCOTUS and the CAFC have practically nullified the right of inventors to enforce their patents. The sport of kings is reserved for the country’s royalty: corporations.

Vexatious patent litigation continues to grind through our already crowded courts. One sign of potential abuse is when a single patent holder sues. ~ CAFC Chief Judge Randall Rader in 2013

 Software Patents

Unlike other technical arts, which are restricted by the chemistry and physics of matter, software can be a purer act of creativity, as its construction is constrained only by the limits of the human mind. The most influential inventions in the late 20th century into the 21st have been in software. Incongruously, governments have been reticent to recognize software as worthy of intellectual-property protection.

Europe never allowed software patents. By legislating from the judicial bench, the US did. (US courts regularly legislate, which is unconstitutional. Routine breaching of constitutional restraints by authorities in the US demonstrate how fundamentally lawless this nation is. Political conservatives – who portray themselves as the staunchest defenders of the constitution as written – tend to be the most egregious offenders, at least from a civil rights standpoint.) The CAFC declared business methods codified in software as patentable in its 1998 State Street decision.

A machine programmed with software produces a useful, concrete, and tangible result. This renders it statutory subject matter, even if the useful result is expressed in numbers, such as price, profit, percentage, cost, or loss. ~ the CAFC in State Street Bank v. Signature Financial Group (1998)

In the years that followed State Street poured a deluge of patent assertions against behemoth software companies, so the courts reversed themselves, though cunningly: leaving enough ambiguity that judges could exercise their whims.

American inventors Bernard Bilski & Rand Warsaw had their patent application for risk management rejected by the patent office. They appealed to the CAFC.

Though they could have legitimately found the application legally remiss for sheer sloppiness (§112), CAFC declared the claimed invention unpatentable under §101. Bilski appealed to the supreme court, which categorically rejected business methods as not patentable in a 5–4 decision (Republican majority).

Expressing that “courts should not read into the patent laws limitations and conditions which the legislature has not expressed,” pro-corporate justices on the supreme court did exactly that (duplicity being the American courts’ stock-in-trade).

The patent application here can be rejected under our precedents on the unpatentability of abstract ideas. ~ SCOTUS in Bilski (2010)

Thus began a cacophony on what constituted an “abstract idea”: a concept unmentioned in the relevant law, §101. A method of drug treatment was patentable, but not immunization. GPS (computerized location determination) was patentable, as “there is no evidence here that the calculations here can be performed entirely in the human mind”; but validating a credit card was not, despite such a process being beyond sheer mentation.

Both members of the supreme court and this court have recognized the difficulty of providing a precise formula or definition for the judge-made ineligible category of abstractness. ~ the CAFC in Ultramercial v. Hulu (2010)

Amid the illicit hand-waving, trends were apparent. Courts basically eliminated business-method patents. No longer was a “useful result is expressed in numbers, such as price, profit, percentage, cost, or loss,” patentable. The supreme court made it clear in Alice v. CLS Bank (2014) that the financial sector was off limits to clever patentees.

The claims at issue are drawn to the abstract idea of intermediated settlement, and that merely requiring generic computer implementation fails to transform that abstract idea into a patent-eligible invention. ~ SCOTUS in Alice v. CLS Bank (2014)

With Alice, software and business-method patents went down the rabbit hole to oblivion, damned for claiming “abstract ideas.” Any logician worth his salt would understand how ludicrous the spearhead of the assault was. In claiming categories of function, patents are necessarily delineations of abstractions.

The only real issues are whether a claimed invention is of practical use, and whether claims are sufficiently delineated, such that one of skill in the relevant technical art would understand their scope. §112 of patent law requires “claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.”

The CAFC descended into gibberish over what constituted an unpatentable abstract idea (as opposed to a patentable one).

Abstract ideas may still be patent-eligible if they contain an ‘inventive concept’ sufficient to ‘transform’ the claimed abstract idea into a patent-eligible application. ~ the CAFC in Planet Bingo v. VKGS (2014)

The courts continued to tighten the noose on patenting software, eliminating claims to apparatuses that relied upon software that did not produce a mechanical result (as opposed to a useful one).

For all categories except process claims, the eligible subject matter must exist in some physical or tangible form. ~ the CAFC in Digitech v. Electronics for Imaging (2013)

Such nonsense contradicts the law in what is patentable. §101 requires only that a “process, machine, manufacture, or composition of matter” or its “improvement thereof,” be “new and useful.” Novelty and utility were the metrics that the legislature demanded; how cerebral the invention was had nothing to do with its patentability.

The judiciary was reticent to decidedly wipe out software patents in toto, for fear of its potential financial impact on the software industry and its sizable patent portfolio. Historically, venture funding for software startups in the US has been premised upon their having new ideas, often signified by being patented, or at least appearing patentable.

Instead, recent patent case law decisions provide fodder for the patent office to reject software patent applications, so that the problem is gradually eliminated at the root with minimal disruption to established businesses. The stock market took no note of the profound change in patent law with regard to software, which wiped out well over a trillion dollars in assets of the largest software corporations. The courts are crafty in their corruption.


There are woeful take-away points to this brief exposition on patent law, and adjudication of the law generally. 1st is the power of the judiciary to arbitrarily craft legalities and later capriciously reverse themselves. The history of the US judiciary is one of jurists following their biased beliefs and fabricating support for it. Self-contradictory case law helps, though that hardly matters, as long-standing precedents are broken upon whim.

Judicial corruption only partly owes to the failure of the Congress to legislate with specificity. Courts skirt the spirit of laws without accountability. Rarely has Congress seen fit to overrule the courts via legislative action, and then only when the courts pointed out a glaringly obvious deficiency in a law in which a court ruling went against Congressional wont.

2nd is that the American courts are highly politicized: the higher courts especially, as power concentrates via appeal. US supreme court rulings are often political denouements, as dissents dramatically show. In the past half century, major decisions of seismic societal import have repeatedly been decided 5 to 4 along strictly partisan lines.

Supreme court justices are chosen on their ideology and political allegiance. In 2016, the Republican-controlled senate refused for a year to even consider a conservative nominee to the supreme court by a Democrat president. Once a Republican was in the office of the presidency, a reactionary right-wing justice was quickly confirmed.

This partisan treatment of a SCOTUS justice nominee was merely the tip of an iceberg. Senate Republicans blanketly refused to consider nominees for federal judgeships by Democrat President Barack Obama, leaving open vacancies which were rapidly filled once Republican President Donald Trump was in office.

At the close of the 2010s, with a solid 5–4 conservative majority, thanks to politically-rigged court packing, SCOTUS engineered rulings to suit their ideology, pitching precedents which opposed their program; thereby effectively substituting caprice for rule of law.

The majority proceeds, relying on one subversion of stare decisis to support another. We may as well not have principles about precedents at all. ~ Justice Elena Kagan, in dissent in Knick v. Scott (2019), joined by Justices Ruth Bader Ginsberg, Stephen Breyer, and Sonia Sotomayor

As federal judges have lifetime appointments, the power of a politicized judiciary lasts for decades. Through judicial rigging, the rightward trend in American politics in the early 21st century will have a lasting impact to mid-century, potentially thwarting any rational spasm of progressivism that citizens decide to take.

Judicial discrimination is only a facet of political corruption which may lead to increasing disillusion by the informed with the behind-the-scenes oligarchy of the United States, which is only hypothetically a nation responsive to the will of the people.

The continuing slaughter of innocents in public places by well-armed madmen is illustrative. Though majority opinion to do something about this societal illness is strong, an obstinate right-wing minority is able to enforce its will, with the courts’ blessing.

3rd is the power of the courts to favor whomever they please, which leads to the larger point. The government uniformly supports plutocratic power. This axiomatic conservatism emanates from both fear and awe. Government officials identify with power, which corporations reek of. Corporate mouthpieces are the most elegant that money can buy. Their eloquence greases the gears of Congressional action and judicial decisions.

The fear which sits ever in the backs of political minds is perhaps even stronger. A world where US corporations are weakened is a harrowing thought. The government is ever reticent to disadvantage corporate interests when the public interest is not dangerously contravened.

Each branch of government has its own set of tools, blunt or sharp in their effect, to pursue empowering the state and favored interests at ordinary citizens’ expense. Through legislation, Congress ineptly paints in broad strokes. Through case law, the courts draw finer lines, weaving through time such a fine web that the judicial spider may snare whatever or whomever it pleases.

One may reflect upon the ceaseless bickering among the halls of power in government (particularly Congress) and consider it of some significance; but it is only pettiness at play between factions. No US government official denounces capitalism. Acts contrary to the interests of corporations are taken only when the pillage has gotten way out of hand; and then, relying upon the short memories of voters, soon rescinded.

United Kingdom

Our courts system is complicated and – in places – confusing, because it has developed over 1,000 years rather than being designed from scratch. ~ UK Courts and Tribunals Judiciary

The United Kingdom does not have a unified judicial system. Courts are separated into 3 jurisdictions: England & Wales, Scotland, and Northern Ireland.

Criminal cases start in a magistrates’ court. Serious criminal matters are sent to the Crown Court. Crown Court conviction appeals go to the High Court, or potentially to the Court of Appeal, or even the Supreme Court.

Civil cases are sometimes dealt with by magistrates but may well go to a county court. Again, appeals go to the High Court, and then to the Court of Appeal; although to different divisions of those courts from criminal cases.

There is a single appellate system for immigration cases. There is a single employment tribunal for all of Great Britain, and a separate one for Northern Ireland.

The 2005 Constitutional Reform Act created a Supreme Court of the United Kingdom to take over the judicial functions of the House of Lords, and handle devolution cases from the Judicial Committee of the Privy Council, which had been the UK’s highest court of appeal. The Privy Council continues to be the highest court of appeal for British overseas territories and several independent Commonwealth countries.

The Supreme Court serves as the highest appeal court in England, Wales, and Northern Ireland, and for civil cases in Scotland. The High Court of Justiciary remains the court of last resort in Scotland for criminal cases.

European Court of Justice

The European Court of Justice (ECJ) was established in 1952 by the Treaty of Paris (1951) which birthed the European Coal and Steel Community. The ECJ was legally indispensable but practically incidental at the time.

The founding of the European Economic Community (EEC) in 1957 via the Treaty of Rome carried the Court of Justice with it. The treaty was vague about the purview of the court: stating hopefully that “the law is observed” in applying the treaty.

Much like John Marshall’s pathbreaking American supreme court, the Court of Justice carved its authority through a series of decisions: defining its power by what it could get away with. The ECJ moved cautiously, but steadily, to make its case law supreme within the European Union.

In a seminal 1963 decision, the ECJ ruled that the 1957 Rome Treaty instituted a new legal order for its members not governed by international law; in effect, the court established that the EU would have its own internal system of law. The key question was whether a member state could retaliate in kind if it was injured by another member violating the Rome Treaty. Under international law, this was permissible. If the EU treaty were simply among sovereign states, a member could strike back. Instead, the court ruled that one member could not retaliate against another but must instead seek relief through the Union’s institutions. The ruling transformed the Treaty of Rome from a mere treaty into a constitution. Furthering that judgment, the Court of Justice ruled the next year (1964) that member states had transferred their sovereign rights to the EU, and that Union law could not be overridden by a nation.

Contemporaneously, the ECJ expanded its mandate by giving individuals and corporations in member states the right to bring cases to it. EU citizens could sue their own governments in the Court of Justice.

Most cases in the court have involved trade regulations. The EU was, after all, intended primarily to enforce free trade within its borders.

The most dramatic developments of case law by the Court of Justice have been in individual rights. This owes to omission in the Treaty of Rome to specify civil rights. The few rights mentioned were economic, such as the free movement of capital and the right of collective bargaining for labor.

Some of these cases have gone deeply into what would be considered the independent responsibilities of member states. ~ Phillips Shivley

As is common with courts expanding their powers, the ECJ followed a strategy of choosing rather inconsequential cases in which neither side could easily protest the outcome. Court self-empowerment slips through, only finding its expression in a later case, with precedent already established.

A basic potential problem for the ECJ has been enforcing its decisions. As the court has no effective power, the ECJ’s authority could never have developed if member states did not heed the court’s decisions.

The Court of Justice entitling itself through accretion of case law was accepted because it was seen as a constructive force, filling in gaps from vagueness in treaty provisions. The alternative would be chaos leading to dissolution, which no member state wants.

As such, there has been a remarkable record of compliance with Court of Justice rulings, with a few exceptions. In an exemplary instance, France defied a court order to stop restricting mutton imports for a couple of years, fearing domestic protests by farmers.

In general, states have followed ECJ decisions. Heeding Court of Justice rulings has, in time, solidified the court’s power, rooting compliance in habit and expectation.


A jury is a body of people convened to consider findings of fact and render an impartial verdict within the confines of the law. Throughout history, juries have been both praised as exemplary of democratic ideals and criticized as confederacies of dunces. Whereas the praise is a lofty vacuity, the withering criticism is apt to emanate from any litigator in a moment of candor.


Juries arose from the custom of ancient Germanic tribes to use a group of reputable men to investigate a crime or judge an accused. This practice evolved into the Vehmic courts of the 13th–16th centuries. These tribunals in Westphalia were based on the county courts of Franconia, another German province.

Having received their jurisdiction from the Holy Roman Emperor, Vehmic lay judges ladled out death sentences in what were often secret proceedings. After execution, the corpse might be hung on a tree as a detriment to others.

Elsewhere in Europe, the power of life and death, once reserved to the Emperor alone, was usurped by local nobles. Only in Westphalia were capital sentences meted out by courts in the Emperor’s name. Vehmic courts were finally abolished in 1811 by Jérôme Bonaparte (Napoléon’s youngest brother), who ruled Westphalia at the time.


English jurors were originally neighborhood witnesses who passed judgment on what they themselves knew. The Normans brought their tradition of juries in their 1066 conquest of England.

During the 11th century, juries comprising knights might be summoned to provide information on local criminal activity. Such practice was formalized for civil disputes in the early 12th century, when Henry II established a system to resolve land disputes using juries of 12 free men; whence the grand jury, used in inquests.

The growth of English towns and concomitant breakdown of close-knit medieval society brought many changes in the 12th century. One was appearance of the petty jury for judging criminal cases.

In 1215, the church banned clergymen from participating in trails by water and fire ordeals as means of proving guilt or innocence. Lacking religious sanction, the practice was abandoned. Trials by battle had already fallen out of favor.

The church’s decree and King John’s Magna Carta of 1215 furthered the evolution of English law and the jury system.

No free man shall be captured or imprisoned or disseised of his freehold or of his liberties, or of his free customs, or be outlawed or exiled or in any way destroyed, nor will we proceed against him by force or proceed against him by arms, but by the lawful judgment of his peers or by the law of the land. ~ Article 39 of the Magna Carta (1215)

In the mid-14th century, those who had sat on a grand jury were forbidden from also participating in a trial jury for that crime.

The economy of self-informing juries in England during the early Middle Ages gradually gave way to those who sat in judgment without knowing the facts. English jurors remained free to investigate on their own until the 17th century.

In early trial-by-jury cases, a judge might decide a matter if jurors were not unanimous. By 1367, case law strongly affirmed unanimity as a necessity; though, over the centuries, this has been watered down to allow majority verdicts.


The American colonies naturally adopted the legal system of their motherland. Jury trials in criminal cases were a protected right in the original constitution, and further elaborated in the 5th, 6th, and 7th amendments: extending the right to trial by jury to both criminal and civil matters, and the employment of a grand jury for serious cases.

Today the grand jury is the total captive of the prosecutor who, if he is candid, will concede that he can indict anybody, at any time, for almost anything, before any grand jury. ~ American jurist William Campbell in 1977

The American colonies were exemplary of the geopolitical forces that extended the jury system. The expansion of the British Empire brought the jury to Asia and Africa.

In the aftermath of the French Revolution, juries became a symbol of popular government throughout Europe. For much of the continent, it was a short-haul heyday before decline. Holland and Luxembourg abolished their jury systems after Napoléon’s defeat. There was further weakening in Europe from the mid-19th century. In 1850, Prussia removed treason from jury jurisdiction. The Duchy of Nassau did so for all political crimes in 1851. Czechoslovakia removed treason from juries in 1923 and libel a year later. In 1919, Hungary suspended trial by jury entirely and never restored it. Germany abandoned juries in 1924. The Soviet bloc and fascist states abolished their jury systems. Japan did away with its short-lived experiment with jury courts in 1943. France never restored juries after German occupation in the mid-1940s. England whittled away at jury use by statute to a small category of cases.

The Belgian constitution specifies that the most serious crimes be judged by juries. As a safeguard for the press, libel trials must also be before a jury. Racism is excluded from this safeguard. Sweden also uses juries in cases involving freedom of the press, but not for other criminal or civil cases.

Norway uses juries only for the most serious crimes, and conviction requires only a 7-of-10 majority.

Spain has no established tradition of using juries and has only experimented with them since constitutional revision in 1978. One of the earliest trials by jury was for the murder of 2 police officers. The accused was let off for lack of jury unanimity – an acquittal that shocked the nation.


Following British tradition, India used juries until a scandalous case in 1959: K.M. Nanavati v. State of Maharashtra. Naval commander K.M. Nanavati was tried for murdering his wife’s lover. The trial received unprecedented media coverage, as such a crime of passion in the upper echelons of society was ripe material. Nanavati was generally given favorable press, as the man he killed was a playboy. It helped that Nanavati’s wife Sylvia stood by her man.

A jury acquitted. India’s high court dismissed the verdict and retried the case itself, whereupon Nanavati was found guilty. The Indian government then abolished jury trials.

After spending 3 years in prison, Nanavati was pardoned. After his release, Nanavati and Sylvia emigrated to Canada.


Generally, the role of the jury on the European continent and elsewhere is more restricted than it is in the US. The United States became the unabashed home of the jury system for both civil and criminal cases. Over 90% of the all jury trials in the world occur in the US.

 United States

In the US, the availability of jury trial varied from state to state until 1968, when SCOTUS decreed it a constitutional right in all criminal cases of “serious offense.” (Duncan v. Louisiana (1968).) The constitutional status of juries in civil cases is uncertain, but juries are generally available. The practice of allowing parties to waive jury trials also varies.

The historic requirements of property and competence for jury service have long been swept away in favor of a cross-section of the community. Most jurisdictions exempt some of those most qualified to serve on juries: police officers, lawyers, doctors, et cetera. Those who know about the law are also commonly excluded; that leaves the common uninformed citizen. Hence, the American jury system is about the most idiotic imaginable.

A jury is composed of 12 men of average ignorance. ~ Herbert Spencer

 Voir Dire

The commitment to random competence is moderated in the US by an elaborate screen process known as voir dire, which is conducted by trial counsel at the inception of a trial. Attorneys on each side may excuse a limited number jury candidates peremptorily; after that they must give a reason.

(Voir dire comes from the Anglo-Norman language, and originally referred to the oath taken by jurors to tell the truth (the Latin verum dicere). This trial-within-a-trial is also used on potential expert witnesses.)

Stupid reasons are okay. ~ American lawyer, psychologist, and jury maven Shari Diamond

American courts disallow excluding jurors based upon ethnicity or race, but the practice is widespread, especially in the south.

Young black men have absolutely no chance of getting on a jury. ~ American defense attorney Antonio Florence


Trial by jury is supervised by a judge. The formula for sharing power between a judge and jury is complex.

Juries are employed only to decide evidentiary issues. The judge instructs the jury how to apply the law in reaching its verdict.

The judge decides what evidence a jury may or may not hear. If the judge finds that evidence presented leaves no factual issue to be resolved, s/he may withdraw the issue from jury consideration.

Judges often make juries less effective by confusing them with perplexing legal instructions which are not written down. Jurors don’t like to admit that they don’t understand, so they muddle on. Many wrong verdicts have been wrought from juries baffled about where to draw legalistic lines.

Absent issue, a judge may direct the jury to find for either plaintiff or defendant in a civil trial. In a criminal trial, the judge may direct the jury to acquit a defendant but cannot direct a guilty verdict.

In a civil trial, a judge may overrule a jury. Juries in US civil trials are essentially window-dressing.

Jury Nullification

Juries are often justified because they leaven the law with community norms. ~ American lawyer and legal scholar Joseph Sanders

Juries may acquit, or find a defendant not liable, in abeyance of the law. Exercise of the power by a jury to selectively apply the law is termed jury nullification in the US (jury equity in the UK): a discretion that has been employed both in acts of conscience and as a matter of prejudice.

Jury nullification has a long history, as does “packing the jury”: judges hand-picking juries or bribing them to get a desired verdict. English and American histories have innumerable instances of jury nullification, and of judges effectively ignoring a jury’s verdict when it did not suit them.

  Bushel’s Case (1670)

In 1670 an English grand jury refused to convict William Penn of unlawful assembly. Penn was a Quaker who had been arrested for violating a law forbidding religious assembly outside the auspices of the Church of England.

An infuriated judge refused to dismiss the jury until he had got “a verdict that the court will accept.” After the jury refused to comply, the judge had them locked up overnight without food, water, or heat. Penn protested this and the judge had him bound and gagged.

After a 2-day fast, the jury persisted by returning a not guilty verdict; whereupon the judge fined the jury for contempt of court and had them imprisoned until the fine was paid. Penn again protested that this violated the Magna Carta and was forcibly removed from court.

Edward Bushel, a juror, appealed against his treatment. Chief Justice John Vaughan initially resisted the appeal (a request for a writ of habeas corpus), but other judges allowed it. In the finale, Vaughan ruled that a jury could not be punished for its verdict.


It may not be amiss, here, Gentlemen, to remind you of the good old rule, that on questions of fact, it is the province 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. ~ Chief Justice John Jay to the jury in Georgia v. Brailsford (1794)

Georgia v. Brailsford (1794) was a civil case over debt, tried with a special jury. This case established jury nullification in American jurisprudence, by the principle of notifying the jury of its power over both fact and law.

That precedent was capriciously countermanded a century later in the murder trial of Sparf and Hansen v. United States (1895), when SCOTUS decided 5–4 that jurors only had the right to apply the law as given by the court.

It is the duty of the court to instruct the jury as to the law, and it is the duty of the jury to follow the law as it is laid down by the court. ~ Justice John Marshall Harlan in Sparf v. US (1895)

While judges no longer had to notify juries of their right to selectively apply the law, jury nullification still arose from time to time.

Prior to the Civil War, northern juries frequently refused to convict those who helped fugitive slaves, feeling the law unjust. Throughout the 19th and 20th centuries, all-white southern juries acquitted white defendants accused of murdering blacks.

During Prohibition, juries often nullified alcohol laws. This frequent resistance contributed to repeal of Prohibition.

During the Vietnam War, draft resisters and war protesters on trial were sometimes acquitted by jury nullification.

In the 21st century, enforcement of drug laws have occasionally been nullified by juries. Juries have also balked at convictions which carry long mandatory prison sentences, assisted suicide, and firearms possession.

In 2001 the California supreme court created a snitch rule that required jurors to inform the judge whenever a fellow panelist appears to be deciding a case based upon disfavor with the law.

A nullifying jury is essentially a lawless jury. ~ California Supreme Court Chief Justice Ronald George

There have been prosecutions against jury nullification.

In 1996, Laura Kriho was the sole juror holdout in a drug possession trial which ended in a mistrial. Kriho was found in contempt of court, and charged with perjury and obstruction of justice, for learning about the potential harsh prison sentence the defendant may have incurred and not volunteering that she knew this to the court. The jury had not been told of the punishment for conviction. Kriho had to fight for 4 years before the charges against her were dropped.

In 2011, 80-year-old retired chemistry professor Julian Heicklen decided to exercise his constitutional right of free speech by handing out information about jury nullification on the steps of the Manhattan federal courthouse. Heicklen was indicted for jury tampering. The federal prosecutor on the case called Heicklen “a significant and important threat to our judicial system.” A year later a federal judge dismissed the charge on a technicality without addressing the issue.


In some jurisdictions a judge may, and often will, summarize the evidence or even discuss its weight; thus, a judge’s biases are directly transferred to the jury.

If a judge finds the jury’s verdict to be manifestly against the weight of the evidence, he may set it aside and order a new trial. The only exception is in a criminal case in which the jury renders an acquittal. A jury’s acquittal is always final under Anglo-American law, though not under European continental law.

One of the original purposes of the non-unanimous jury was to functionally silence the views of racial and ethnic minorities and women. ~ American law professor Charles Ogletree

Only 2 US states allow criminal conviction by less than unanimous jury verdict: Louisiana and Oregon. Only a 10-to-2 vote is required in those states. Oregon does require unanimity for 1st-degree murder, and Louisiana likewise in capital cases.

Jury deliberations are less vigorous when unanimity is not required. ~ Shari Diamond

When the required number of jurors cannot agree on a verdict (which Americans call a hung jury), the judge declares a mistrial. The case is withdrawn and must be tried anew. Owing to group dynamics, hung juries are relatively infrequent, even when unanimity is required.

European juries generally operate under a different principle: unless at least 2/3s of all jurors vote guilty, a defendant is acquitted. US army court-martial also works this way.

All individuals and groups exhibit biases. Juries are no different.

Jury verdicts and jury deliberations show the same inescapable influences of status, race, and gender that affect the rest of society. The jury system, intended to ensure the administration of justice by one’s peers, has various forms of bias and lack of representation that interfere with fairness. Juries are, in some ways, society in miniature. ~ Margaret Anderson & Howard Taylor

As with all groups, leaders quickly emerge in juries. Those with esteemed social status do the most talking in jury deliberations and are thought by others to be the most helpful in reaching a verdict.

Larger juries are more likely to reflect the community at large, which is the whole point of the jury system: the proverbial “jury of peers.” Equally important is that jury size has considerable impact on its performance.

Larger juries are more likely than smaller juries to contain members of minority groups, deliberate longer, and hang more often. ~ American lawyer and psychologist Michael Saks & American psychologist Mollie Weighner Marti

A larger jury naturally acts with a superior information resource base. Larger juries better recall more trial testimony than do smaller juries.

Larger juries more substantively deliberate, in sharing more facts and speculations, and in more readily challenging tentative conclusions. In that longer deliberations contain more information, they may improve the decision.

By contrast, smaller juries are more likely to be under sway of a dominant individual. Polarization is common in small groups. Hence, smaller juries give larger awards in civil cases.

Factions form during jury deliberations. Peer pressure weighs heavily upon jurors. A juror is much less likely to defect from a large faction to a small one. The larger the faction, the less willing a juror will be to defy group opinion.

◊ ◊ ◊

In a series of decisions in the 1970s, the US high court held that juries smaller than the traditional 12 did not violate the constitution. (Williams v. Florida (1970); Colgrove v. Battin (1973); Ballew v. Georgia (1978).) SCOTUS reasoned that what matters is not jury size, but the way it performs. This reflected nothing but woeful ignorance of human sociality in favor of imagined nonsense by that country’s jurist elite.

The essential feature of a jury obviously lies in common sense judgment of a group of laymen. The performance of this role is not a function of the particular number of the body that makes up the jury. ~ Justice Byron White in Williams v. Florida (1970)

In holding that juries smaller than 12 are constitutional, the supreme court set aside 600 years of common law tradition and 2 centuries of constitutional history, including the reversal of its own precedents. ~ Michael Saks & Mollie Marti

In its 1978 Ballew v. Georgia ruling, the supreme court found 5 too small a jury. 6 became the acceptable minimum.

Enigmatically, the 1978 opinion relied on studies comparing the behavior of 12- and 6-member juries to affirm the reduction to 6 while concluding that further reduction raised serious concerns about the jury’s ability to perform its functions. ~ Michael Saks & Mollie Marti