Is America Still a Nation of Laws? → Washingtons Blog
Is America Still a Nation of Laws? - Washingtons Blog

Sunday, December 20, 2009

Is America Still a Nation of Laws?

Congress and the White House may have been co-opted by the big lobbyists and Wall Street insiders, but you may assume that at least the third branch of government - the courts - are still following the rule of law and protecting the little guy.

Unfortunately, the American system of justice is also under attack.

I'm not talking simply about judicial corruption. True, as I pointed out on February 17, 2009:

Senior judges in Pennsylvania have pleaded guilty to falsely convicting and imprisoning hundreds of youths (they got kickbacks from the prisons).


The Pennsylvania Supreme Court refused to hear a case regarding the corrupt judges. A month later, only after the judges confessed to criminal wrongdoing, did the Supreme Court change its mind and take any interest

In fact, I'm talking about something much more disturbing than simple corruption. I am talking about abandoning the very foundations of our judicial system.

For example, as I noted on July 21, 2009:

The New York Times is providing important coverage of the U.S. Supreme Court's May 18, 2009 decision in the case known as Ashcroft v. Iqbal:

The lower courts have certainly understood the significance of the decision, Ashcroft v. Iqbal, which makes it much easier for judges to dismiss civil lawsuits right after they are filed. They have cited it more than 500 times in just the last two months.

“Iqbal is the most significant Supreme Court decision in a decade for day-to-day litigation in the federal courts,” said Thomas C. Goldstein, an appellate lawyer with Akin Gump Strauss Hauer & Feld in Washington.

Why is Iqbal such an important case?

As the Times notes:

For more than half a century, it has been clear that all a plaintiff had to do to start a lawsuit was to file what the rules call “a short and plain statement of the claim” in a document called a complaint. Having filed such a bare-bones complaint, plaintiffs were entitled to force defendants to open their files and submit to questioning under oath.

This approach, particularly when coupled with the American requirement that each side pay its own lawyers no matter who wins, gave plaintiffs settlement leverage. Just by filing a lawsuit, a plaintiff could subject a defendant to great cost and inconvenience in the pre-trial fact-finding process called discovery...

Information about wrongdoing is often secret. Plaintiffs claiming they were the victims of employment discrimination, a defective product, an antitrust conspiracy or a policy of harsh treatment in detention may not know exactly who harmed them and how before filing suit. But plaintiffs can learn valuable information during discovery.

The Iqbal decision now requires plaintiffs to come forward with concrete facts at the outset, and it instructs lower court judges to dismiss lawsuits that strike them as implausible.

“Determining whether a complaint states a plausible claim for relief,” Justice Anthony M. Kennedy wrote for the five-justice majority, “requires the reviewing court to draw on its judicial experience and common sense.”

Note those words: Plausible. Common sense.

So what is the real world effect of the Supreme Court's decision?

The Times provides some hints:

“It obviously licenses highly subjective judgments,” said Stephen B. Burbank, an authority on civil procedure at the University of Pennsylvania Law School. “This is a blank check for federal judges to get rid of cases they disfavor.”

Courts applying Iqbal have been busy. A federal judge in Connecticut dismissed a disability discrimination suit this month, saying that Iqbal required her to treat the plaintiff’s assertions as implausible. A few days later, the federal appeals court in New York dismissed a breach of contract and securities fraud suit after concluding that its account of the defendants’ asserted wrongdoing was too speculative.

Indeed, the Plaintiff in Iqbal himself, was a Pakistani Muslim working and living in Long Island, who claims he was arrested 2 months after 9/11 and then beaten and tortured. But the court didn't want to hear about it:

Justice Kennedy said Mr. Iqbal’s suit against two officials had not cleared the plausibility bar. All Mr. Iqbal’s complaint plausibly suggested, Justice Kennedy wrote, “is that the nation’s top law enforcement officers, in the aftermath of a devastating terrorist attack, sought to keep suspected terrorists in the most secure conditions available.”

In other words, the Court found the allegation that an innocent person was tortured as "implausible". It has become apparent to everyone, however, that many innocent people were tortured.

The Iqbal decision is - literally - an assault by the Supreme Court on the American system of justice. For it prevents plaintiffs from having their day in court if either:
  1. The judge doesn't want to hear the case; or

  2. The defendant has hidden the evidence of wrongdoing, so that the plaintiff cannot provide the details of defendant's wrongdoing without the use of the formal discovery process which only starts once litigation has commenced
People may ask "the Supreme Court interprets and enforces the American justice system, so how can it gut that system?

Well, Congress members and the President are supposed to represent the interests of the American people. Have they always done so?

Judges - like people in the White House and Congress - are human beings with political and personal viewpoints. Some stick to the case precedent while others - no matter how high and mighty - abandon it for political or personal reasons. That is the dirty little secret that those who work inside the justice system know.

In rendering the
Iqbal decision, the Supreme Court abandoned some of the fundamental principals of justice, leaving a system which only pays lip service to that word.

Several Supreme Court justices dissented with the majority's opinion in Iqbal. As Raw Story
Departing Justice David H. Souter sided with the minority in this case, expressing dismay in his dissent and suggesting the decision could “upend,” said the Times, the federal civil litigation system. He argued that complaints should be accepted “no matter how skeptical the court may be,” so long as the accusations are not “sufficiently fantastic to defy reality as we know it.”

“[Claims] about little green men, or the plaintiff’s recent trip to Pluto, or experiences in time travel,” he said, should be the bar for disqualification.

Justice Ruth Bader Ginsburg agreed, suggesting the court had “messed up the federal rules” for civil suits.

Now, Chris Floyd and Yves Smith point out another worrisome Supreme Court decision:

If the president or one of his subordinates declares someone to be an “enemy combatant” (the 21st century version of “enemy of the state”) he is denied any protection of the law. So any trouble-maker (which means anyone) can be whisked away, incarcerated, tortured, “disappeared,” you name it. Floyd’s commentary:

After hearing passionate arguments from the Obama Administration, the Supreme Court acquiesced to the president’s fervent request and, in a one-line ruling, let stand a lower court decision that declared torture an ordinary, expected consequence of military detention, while introducing a shocking new precedent for all future courts to follow: anyone who is arbitrarily declared a “suspected enemy combatant” by the president or his designated minions is no longer a “person.” They will simply cease to exist as a legal entity. They will have no inherent rights, no human rights, no legal standing whatsoever — save whatever modicum of process the government arbitrarily deigns to grant them from time to time, with its ever-shifting tribunals and show trials.

It is hard to overstate the significance of this horrid decision. The fact that the Supreme Court authorized this land grab says we no longer have an independent judiciary, that the Supreme Court itself is gutting the protections supposedly provided by the legal system. Per Floyd:

In fact, our most august defenders of the Constitution did not have to exert themselves in the slightest to eviscerate not merely 220 years of Constitutional jurisprudence but also centuries of agonizing effort to lift civilization a few inches out of the blood-soaked mire that is our common human legacy. They just had to write a single sentence.

Now Floyd saw this mainly as an issue of the treatment of enemy combatants and Obama hypocrisy about torture, which is bad enough:

The Constitution is clear: no person can be held without due process; no person can be subjected to cruel and unusual punishment. And the U.S. law on torture of any kind is crystal clear: it is forbidden, categorically, even in time of “national emergency.” And the instigation of torture is, under U.S. law, a capital crime. No person can be tortured, at any time, for any reason, and there are no immunities whatsoever for torture offered anywhere in the law.

And yet this is what Barack Obama — who, we are told incessantly, is a super-brilliant Constitutional lawyer — has been arguing in case after case since becoming president: Torturers are immune from prosecution; those who ordered torture are immune from prosecution….let’s be absolutely clear: Barack Obama has taken the freely chosen, public, formal stand — in court — that there is nothing wrong with any of these activities.

Yves here. The implications are FAR worse. Anyone can be stripped, with NO RECOURSE, of all their legal rights on a Presidential say so. Readers in the US no longer have any security under the law.

Roman citizens enjoyed a right to a trial, a right of appeal, and could not be tortured, whipped, or executed except if found guilty of treason, and anyone charged with treason could demand a trial in Rome. We have regressed more than 2000 years with this appalling ruling.

Is America still a nation of laws? Or is it a nation in which judges get to throw out cases soon after filing because the plaintiffs claims go against the judge's belief system or world view and the President can decide that someone is entitled to no legal protection whatsoever?


  1. Of course not. Hasn't been for many many years.

  2. I'm confident that if research was done on the changes of the rules of law near the end of the Roman, Spanish and British empires, similar situations would be found.

  3. Something needs to be done about unjustified law suits. How about, as a simple measure, plaintiffs having to pay the huge bills that they cost everyone if they lose? It does not take much reading between the lines to know that a party with more money can use the threat of legal expense to extort something they want. A financially unequal party will usually settle long before the case gets to court. The current system is just fine as far as the billionaire's are concerned. The net effect is very much like feudalism, where the aristocrats enjoyed unequal benefits from the legal system, thereby keeping the serfs in their place.

  4. I am currently reading a translation of Albert Schweitzer's -The Philosophy of Civilization- by CT Campion, 1949 of the 1923 German original. Everyone has heard the name, -but few have any idea who Albert Schweitzer is, -or what his philosophy might be all about.

    Schweitzer sets forth the proposition that the failure -such epistemological problems as the courts represent- have to do with our belief in a necessary epistemological theory of the Universe. It's a broad, but aptly cogent statement.

    It's of course -heady philosophic stuff. What Schweitzer is saying is, -it isn't necessarily true that God, evolution, science or any 3-fold or 8-fold way- have ever been strictly held up to establish that any of these concepts or beliefs (like courts) fit reality in the sense that they are possible as we perceive them in the ideal.

    We would not allow dishonest judges, but, is it even possible to find an honest judge?

    Our continuous observation is that these ideals are overwhelming societal failures, -too often worse than the problems they were meant to address. (Judges who sell kids down the river for payola, are in fact the tip of the proverbial iceberg.)

    It boils down to this. If as we can accord through our observations of humanity -that a civilized man is almost as rare as a unicorn, -then- a civilized state must be an -absolute- oxymoron, little more than a non sequitur, especially (as I might add) because states are not conscious entities whereby they could express civilized thought or action.

    The state is but a great fire-breathing steed upon which these corrupt judges ride swinging their reckless sabors through the terrified masses of the humanity that cower and cover their heads at their appearance.

    I'd like everyone to consider this philosophic observation very closely.

    For conscious entities -there's just you and me, those other people over there, -and that guy who has been appointed a judge- who is too often locking people (mostly kids) in cages unfit for a dog.

    Of course, I'm realistic about all this. No one really thinks today. Geniuses are born, right?

    I have told many dozens of a book I recently read -that I consider by far the most important book I have ever read- and, I have advised all to read it.

    Very few will, -even if there is no dearth of intellectual giants popping up on every public board -who will poop all over everywhere to demonstrate their all-to-human conception of genius.

    The book is, Chesterfield's Letters to His Son.

    I'd like to hear here of anyone else who has taken the time to read this book, and their thoughts on it.

    And people here think there is progress occurring! Bark like a dog, and chirp like a bird -are commands more likely to be taken.

    Woof, woof. Tweet, tweet!

  5. "Is America still a nation of laws?"

    The supreme leader's ability to "disappear" anyone of his choosing as an enemy of the state aka "enemy combatant" without due process, to spy on citizens without a judicial warrant and oversight. and to enable the secret police torture people, including citizens, the country is living under the tyranny of dictatorship. All the rest is a footnote to that.

    We want our country back.

  6. Prior to Iqbal, the district court when deciding a dismissal motion took all facts pleaded by plaintiff as true. The issue was whether the pleadings were sufficient. The court was not allowed to resolve factual issues; that was for trial or summary judgment. "All" Iqbal did was reverse that and allow the district court to treat the facts pleaded as false, or at least unprovable, something dismissal procedure is not designed for.

  7. Amazing article, G. You are a God-send for those of us yearning for justice under the law.


→ Thank you for contributing to the conversation by commenting. We try to read all of the comments (but don't always have the time).

→ If you write a long comment, please use paragraph breaks. Otherwise, no one will read it. Many people still won't read it, so shorter is usually better (but it's your choice).

→ The following types of comments will be deleted if we happen to see them:

-- Comments that criticize any class of people as a whole, especially when based on an attribute they don't have control over

-- Comments that explicitly call for violence

→ Because we do not read all of the comments, I am not responsible for any unlawful or distasteful comments.