[As it is well-known that the Justices do not read

supplicant petitions unless they involve a subject

they care about (e.g., Scalia, with abortion), and
there is no known prohibition to my doing this, I
have taken the liberty of interspersing interpre-
tive commentary (in brackets) dissecting the two
opinions below for benefit of the general public.
It is imperative that everyone sees just how law-
less our Imperial Judiciary has become.]
____________________________________

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT
____________

No. 14-5180 September Term, 2014

1:13-cv-00298-KBJ
Filed On: January 14, 2015

Kenneth L. Smith,

Appellant

v.

Antonin Scalia, et al.,

Appellees

BEFORE: Griffith, Kavanaugh, and Wilkins,

Circuit Judges

63
 ORDER

Upon consideration of the motion for recusal; and

the motions for summary affirmance, the opposi-
tions thereto (one of which contains a request for
affirmative relief), the replies, and the supplemental
reply in support of the request for affirmative relief,
it is

ORDERED that the motion for recusal be denied

to the extent appellant seeks recusal of the above-
named judges. This is not a case in which the jud-
ges’ “impartiality might reasonably be questioned.”
In re Brooks, 383 F.3d 1036, 1041 (D.C. Cir. 2004).

[As if judges can be trusted to rule impartially

in any matter involving colleagues. “They work
with the fellow employee … They thus are under
obvious pressure to [resolve a dispute] in favor of
the institution and their fellow employee. Cleav-
inger v. Saxner, 474 U.S. 193, 204 (1985). Or in
the words of Judge Kane (quoting a colleague),
"‘‘John, think about it. The next time it could be
you or me. We've got to stick together.’’" Ronald
D. Rotunda, The Courts Need This Watchdog,
Wash. Post, Dec. 21, 2006 (remarks of Senior
Judge John L. Kane, of the District of Colorado).
The Breyer Commission referred to it as “undue
guild favoritism.” Stephen Breyer, et al., Imple-
mentation of the Judicial Conduct and Disability
Act of 1980: A Report to the Chief Justice (Sept.

64
 2006) at 1. And yes, there is precedent for mass
recusals. E.g., Order, United States v. Scruggs,
No. 07-cr-00325-LSC-HGD (N.D. Ala. Nov. 14,
2007) (entire bench recused); see Thompson v.
The Florida Bar, No. 6:10-cv-442-Orl-31KRS
(M.D. Fla. Apr. 1, 2010).

To put it in terms even Judge Robert “Driving

While Black” Wilkins can understand, Maryland
cops are capable of impartially judging whether
they act out of racial animus. Yeah, right. To
even state the case is to refute it.]

It is FURTHER ORDERED that the motions for

summary affirmance be granted.

[About the only thing that need be noted here

is that parties are instructed that they “should
avoid requesting summary disposition of issues
of first impression for the Court.” D.C. Circuit
Handbook of Practices and Internal Procedures
36 (2013). The questions of first impression on
offer were:

1. Does the grant of summary judgment in a

case where the plaintiff demands a proper
Seventh Amendment jury trial and the
judge has a self-evident conflict-of-interest
violate his right to a jury trial and/or his
Fifth Amendment right to have his case
heard by a fair and independent tribunal?

65
As a reminder, the trial court described this as a
“novel” argument. As there is scholarly support
for the finding that summary judgment is uncon-
stitutional, Suja Thomas, Why Summary Judg-
ment Is Unconstitutional, 93 U.Va. L. Rev. 139
(2007), it cannot be seen as “frivolous.”

2. Who can enforce Article III good behavior

tenure, given that Congress admits that it
has no constitutional authority to do so?

As the closest that the trial court could come

to precedent on this question is obiter dictum in
a plurality opinion, this was indisputably a mat-
ter of first impression in the Circuit.

3. Is the ancient right to privately prosecute

a crime one of the common law safeguards
against abuse of official authority that the
Framers sought to preserve inviolate in
the Ninth and Tenth Amendment?

Again, if it is a “fundamental” unenumerated

right, it could only be divested via constitutional
amendment. Even if a court were to find that it
was not fundamental, it leaves open the question
of whether the (apparently, judicially-contrived)
classification has any constitutional foundation
(the better argument is that it does not). Justice
Scalia informs us that this question has never
been resolved, Young v. United States ex rel.

66
 Vuitton et Fils S.A., 481 U.S. 787, 816 and n. 2
(1987) (Scalia, J., concurring in part), and the
trial court could not find controlling precedent in
the Circuit.

4. Does the 1992 ratification of the Inter-

national Covenant on Civil and Political
Rights, the “object and purpose” of which
was to secure individual rights by abol-
ishing all official immunities, constitute a
waiver of the judge-made law of sovereign
and/or judicial immunity?

This question isolates a conflict between time-

honored rules of treaty interpretation and the
newly-invented, cf., Jacobs v. United States, 290
U.S. 13, 16 (1933) (Fifth Amendment "takings"
clause implicitly waives immunity), doctrine that
Congress must waive sovereign immunity in an
express and unequivocal manner in order for the
United States to be liable for the tortious actions
of its agents. As the failure to waive immunity
constitutes repudiation of the treaty, something
has to give.]

The merits of the parties' positions are so clear

as to warrant summary action. See Taxpayers
Watchdog, Inc. v. Stanley, 819 F.2d 294, 297 (D.C.
Cir. 1987) (per curiam). Appellant’s claims appear
to be based entirely on his dissatisfaction with acts
taken by appellees in their capacity as judges,

67
 […and, according to Alexander Hamilton, with
damn good reason:

There is no position which depends on

clearer principles, than that every act of a
delegated authority, contrary to the tenor
of the commission under which it is exer-
cised, is void. … To deny this, would be to
affirm … that men acting by virtue of pow-
ers, may do not only what their powers do
not authorize, but what they forbid.

The Federalist No. 78, 438 (Alexander Hamilton)

(I. Kramnick ed. 1987). Article III judges do not
enjoy a constitutional license to vent their spleen
on defenseless litigants, issue ukases in defiance
of the law of the land, or grant themselves per-
mission to do so with impunity. The Framers’
Constitution provided an array of remedies, but
the SCOTUStitution superseded that venerable
document long ago.]

and he has identified no cause of action that allows

him to bring any such claim. With respect to
appellant’s claims for damages, the Supreme Court
has long held that “[s]overeign immunity shields the
United States from suit absent a consent to be sued
that is unequivocally expressed.” United States v.
Bormes, 133 S. Ct. 12, 16 (2012) (internal quotation
omitted); see also United States v. Clarke, 33 U.S.
436, 444 (1834). Appellant has not identified any

68
binding authority that provides otherwise, nor has
he shown a waiver.

[This is one of those times when the words of

Chief Justice Marshall have to be harmonized
with the words of Chief Justice Marshall.

As anyone who attended law school can recall,

Marshall said: “The very essence of civil liberty
certainly consists in the right of every individual
to claim the protection of the laws, whenever he
receives an injury. One of the first duties of gov-
ernment is to afford that protection.” Marbury v.
Madison, 5 U.S. 137, 163 (1803). This is logi-
cally inconsistent with his claim that “the United
States are not suable of common right.” United
States v. Clarke, 33 U.S. at 444. The solution is
an implied waiver of sovereignty for violations of
vested constitutional rights, as was the case in
Britain: “[I]t is a settled and invariable principle
in the laws of England that every right, when
withheld, must have a remedy, and every injury
its proper redress." Marbury, 5 U.S. at 163. Why
bother to fight a revolution if all you do is change
“this master for that,” with the result being that
your rights are less-secure than they were?]

Judges’ immunity from civil actions challenging

their judicial acts is also well established. See
Stump v. Sparkman, 435 U.S. 349, 355 (1978).
Appellant’s contention that the International Cove-

69
nant on Civil and Political Rights provides him with
a remedy for judicial misconduct is incorrect; the
treaty is “not self-executing and so did not itself
create obligations enforceable in the federal courts.”
Sosa v. Alvarez-Machain, 542 U.S. 692, 735 (2004).

[In most cases, federal appellate judges spend

less time deciding an appeal than they do taking
a dump. See e.g., Alex Kozinski, Letter (to Judge
Samuel A. Alito, Jr.), Jan. 16, 2004 at 5 (150 rul-
ings made in a two-day session in the Ninth Cir-
cuit); Perfunctory Justice; Overloaded Federal
Judges Increasingly Are Resorting to One-Word
Rulings, Des Moines Register, Mar. 26, 1999, at
12 (fifty appeals decided in two hours in Eighth
Circuit); William Graberson, Caseload Forcing
Two-Level System for U.S. Appeals, N.Y. Times,
Mar. 14, 1999 (Judge Posner admits that most
"judges, myself included, are not nearly as care-
ful in dealing with unpublished decisions'');
Erickson v. Pardus, 551 U.S. 89 (2007) (per cur-
iam) (Tenth Circuit); see also, Sarah Ricks, The
Perils of Unpublished Non-Precedential Federal
Appellate Opinions: A Case Study of the Sub-
stantive Due Process State-Created Danger
Doctrine in One Circuit, 81 Wash. L. Rev. 217,
269 (2006) ("THE COURT: At a conference of the
Third Circuit, the Court of Appeals defended
their unpublished opinions on the ground that
they’re not well reasoned, they don’t give them
much thought." [per court transcript]). And by all

70
 accounts , this Court spends even less.)

If any one of the three judges had done their

due diligence, they would have been informed
that treaty provisions are self-executing if they
"require no legislation to make them operative."
Whitney v. Robertson, 124 U.S. 190, 194 (1888).
Both the Senate and the State Department said
that domestic law was 100% ICCPR-compliant,
and that the United States always conforms its
law to a treaty prior to its ratification. For that
reason, it doesn’t matter whether the treaty was
self-executing. It is the law of the land. Treaties
“must be construed … as to effectuate the inten-
tion of the parties,” Ware v. Hylton, 3 U.S. 199,
249 (1796), and the parties plainly intended that
the operative provisions be enforceable.]

As for appellant’s requests for injunctive (or

“affirmative”) relief seeking to enforce the Good
Behaviour Clause of the Constitution, Art. III, § 1,
against the judicial appellees, he has not shown that
private individuals have the authority to enforce the
Clause.

[Cui bono? "It is difficult to get a man to

understand something, when his salary depends
on his not understanding it." Upton Sinclair, I,
Candidate for Governor: And How I Got Licked
109 (U. Cal. Press 1994) (1935). Judges are
highly motivated to find that, as they know that

71
 Congress doesn’t think that they have the power
to enforce it—with the end result being that no
one being able to enforce it, rendering the condi-
tion meaningless. It’s like asking Tom Brady to
investigate Deflategate, Richard Nixon to inves-
tigate Watergate, or Cardinal Law to investigate
Father Geoghan. You know what the result will
be.]

Nor has he refuted the principle that “the Executive

Branch has exclusive authority and absolute discre-
tion to decide whether to prosecute a case . . . .
Under the authority of Art. II, § 2, Congress has
vested in the Attorney General the power to conduct
the criminal litigation of the United States Govern-
ment.” United States v. Nixon, 418 U.S. 683, 693-94
(1974).

[Cui bono? Again, judges are highly motivated

to keep this power out of the hands of aggrieved
litigants, because the penalty for being convicted
of a “conspiracy against rights” carries up to ten
years in “Club Fed,” 18 U.S.C. § 241, and many
judges could be successfully prosecuted.

The operative issue is whether Congress has

the raw authority to invest the Attorney General
with such exclusive authority. And if this were
settled law, the Court of Appeals would be able
to cite something closer to being on-point than
the Nixon case, which focused on Congressional

72
 authority to prosecute crimes. The only colorable
Court precedent, Confiscation Cases, 74 U.S. 454
(1869), is from a day when criminal prosecutions
conducted by the Attorney General were still
called “public prosecutions”—to distinguish them
from the kind of private prosecutions I demand.

Whenever a judge has clear precedent to sup-

port an opinion, the resulting opinion is usually
clear and erudite. E.g., Driskell v. Homosexuals,
No. 8:15-CV-158 (D. Nebr. May 6, 2015). But if a
court has nothing to hang its proverbial hat on,
it resorts to embarrassing argle-bargle like this.]

Appellant has also identified no error in the dis-

trict court’s entry of a filing injunction. Although he
challenges the injunction as improperly imposed
under Fed. R. Civ. P. 11, the injunction was not
based on Rule 11, but rather on the court’s authority
“to protect the integrity of the courts and the orderly
and expeditious administration of justice.” Urban v.
United Nations, 768 F.2d 1497, 1500 (D.C. Cir.
1985).

[Assuming arguendo that our courts have such

an authority, one is left to wonder why Rule 11 is
inadequate to the task. As in Urban’s case, Rule
11 sanctions would have been identical, there is
no apparent need for courts to invent some bogus
kind of “inherent” authority.]

73
 And appellant’s argument that the district court’s
dismissal of his complaint violated his Seventh
Amendment right to a trial by jury is meritless. See
Lehman v. Nakshian, 453 U.S. 156, 160-61 (1981)
(Seventh Amendment right does not apply to claims
against the federal government);

[Of course, one searches in vain to find evidence

that the Framers intended that to be the case.]

Mireles v. Waco, 502 U.S. 9, 11 (1991) (judicial

immunity means immunity from suit). Finally, the
district court did not abuse its discretion in denying
appellant’s motion for reconsideration. See Fire-
stone v. Firestone, 76 F.3d 1205, 1208 (D.C. Cir.
1996).

Pursuant to D.C. Circuit Rule 36, this disposition

will not be published. The Clerk is directed to with-
hold issuance of the mandate herein until seven
days after resolution of any timely petition for
rehearing or petition for rehearing en banc. See Fed.
R. App. P. 41(b); D.C. Cir. Rule 41.

Per Curiam

[The functional translation from the Latin: No

one wants to take personal responsibility for this
juridical abortion, almost certainly written by a
second-year law student.]

74