Brett Kavanaugh: Adventures In Perjury

.
My mom taught me the importance of equality for all Americans—
equal rights, equal dignity, and equal justice under law.
—Judge Brett Kavanaugh1

Confirmation hearings in the Senate Judiciary Committee are a special kind of farce. While
under oath, candidates testi-lie, proclaiming their “commitment to the rule of law,” that they will
“interpret the law as written,” and “not impose personal policy preferences.”2 And five minutes
after they receive their gavels, they forget that they ever made those promises.

Unfortunately. Brett Kavanaugh is not unique.

In his opening statement, Kavanaugh averred that he “stands behind” his body of work on the
D.C. Circuit, and tells people: “Don’t read what others say about my judicial opinions. Read the
opinions.”3

The reader is cordially invited to take Judge Kavanaugh’s sage advice.

The matter of Smith v. Scalia4 is instructive. The appeal raised a question of first impression:
What did the Framers mean when they said that Article III judges “shall hold their offices during
good Behaviour,”5 and who had the power to enforce good behavior tenure? And this is, quite
literally, all he said in denying the appeal:

As for appellant’s requests for injunctive (or “affirmative”) relief seeking to enforce the
Good Behavior Clause of the Constitution, Art. III, § 1, against the judicial appellees, he
has not shown that private individuals have the authority to enforce the Clause.6

Or to put it functionally, “You lose … because WE SAID SO!”

The briefs quote Blackstone, and the scholarship of Saikrishna Prakash and Steven D. Smith7
and Harvard’s legendary Raoul Berger,8 showing that there was a clear and unequivocal answer:
the judge who violates the oath of office in even a single case has violated the condition of good
behavior,9 and may be removed from the federal bench by an aggrieved litigant.10 At bare mini-
mum, someone has to be able to enforce it.

There is no contrary authority.

Cui bono? As Upton Sinclair quipped, "It is difficult to get a man to understand something,
when his salary depends on his not understanding it."11 Brett Kavanaugh was highly motivated
to deny the appeal because, as he well knew, HE could be next. It’s like asking Tom Brady to
investigate Deflategate, Richard Nixon to investigate Watergate, or Cardinal Law to investigate
Father Geoghan. You know what the result will be.

1
 Judge Kavanaugh’s cardinal sin is not so much that he put his fingers on the scales of justice to
benefit himself personally, but that the opinion falls scandalously short of the minimum required
to satisfy the demands of due process. As Professor Tribe writes in his seminal treatise, due pro-
cess has two elemental components: “the right to be heard and the right to hear why.”12 To meet
the requirements of due process, a court’s answer must be more than “Because I said so, damnit!”
Justice Breyer elaborates:

Judges do not simply announce a legal conclusion. They reason their way to that conclu-
sion in an opinion written for all to see. The obligation to provide legally defensible
reasoning in a publicly accessible format prevents a judge from escaping accountability.
Indeed, a good judicial opinion is transparent and informative. It shows that the decision
is principled and reasoned. The strength of this reasoning matters.13

The Breyer standard is not just a statement of best practices, but what we have a constitutional
right to demand from our courts. Every American—from the lowliest serf to the mightiest prince
has the right to “adequate, effective, and meaningful” access to federal court.14 Judge Kavanaugh
had a corresponding duty to provide it.15 Willful failure to discharge that duty is a federal crime,
and if done as a part of a conspiracy, a felony.16

In his opening statement, Judge Kavanaugh had much to say about the judging process. The
judge “must interpret the Constitution as written, informed by history and precedent,” and “inter-
pret the law, not make the law.”17 Importantly, citing Federalist 83, he adds that “rules of legal
interpretation are rules of common sense.”18

The first applicable rule, which Kavanaugh should have encountered in the first week of law
school, is that it “cannot be presumed that any clause in the constitution is intended to be without
effect; and, therefore, such a construction is inadmissible, unless the words require it.”19 Second,
it is the court’s duty “to give effect, if possible, to every clause and word of a statute.”20 Third, a
constitutional provision “should not be construed so as to defeat its evident purpose, but rather so
as to give it effective operation and suppress the mischief at which it was aimed.”21 Finally, in
the words of Justice Thomas, our “courts must presume that a legislature says in a statute what it
means and means in a statute what it says there.”22

A competent opinion would have began by quoting the relevant law: "‘The Judges, both of the
supreme and inferior Courts, shall hold their Offices during good Behaviour.’ U.S. Const. art. III,
§ 1.” And—assuming that they taught property law back at Yale Law School—Judge Kavanaugh
would have recognized this as a life estate subject to a condition. If the condition is violated, the
life estate is extinguished.

As “good Behaviour” is opaque on its face, the competent judge would turn to the literature to
ascertain its meaning. As it was a term of legal art, he would start with Madison’s assertion that
when "a technical word is used [in the Constitution], all the incidents belonging to it necessarily
attended it."23 He would then turn to Blackstone, Coke, and English Year Books to determine its
common law definition. And a Federalist Society darling like Judge Kavanaugh might turn to the

2
Federalist Papers, where Alexander Hamilton opined that “the standard of good behavior for the
continuance in office of the judicial magistracy, … [is] the best expedient which can be devised
in any government, to secure a steady, upright, and impartial administration of the laws.”24 If he
needed help beyond that, he could have been schooled by Harvard’s legendary Raoul Berger.25

Or he could have cheated, and just read the goddamned briefs.

At bare minimum, a competent opinion would have defined “good Behaviour,” showing how
the oath of office offers judges fair notice of the misconduct which would cause their dismissal.
And no, it doesn’t mean former Chief Judge Ed Nottingham of the District of Colorado, blowing
over $3,000 at a strip club in a night of drunken debauchery.26 In short, anything that would be a
violation of the oath of office would be a violation of the Good Behavior Clause.27 Or, to put it
functionally, under that provision, if a judge doesn’t DO his job, he loses his job.

Next, a competent opinion would identify who is authorized to enforce good behavior tenure.
Judges, acting in their own self-interest, would like you to believe that no one can,28 but neither
the text nor common sense could sustain such a proposition, as it would grant judges a god-like
power without accountability. We turn to Professor Berger for a healthy dose of common sense:
"[w]hen an office held ‘during good behavior’ is terminated by the grantee’s misbehavior, there
must be an ‘incident’ power to ‘carry the law into execution’ if ‘good behavior’ is not to be an
impotent formula."29 Someone has to be able to do it.

Is that power vested in Congress? We are told that Congress has the “sole Power of impeach-
ment,”30 but nothing is said about power to enforce good behavior tenure, and Congress itself has
concluded that it doesn’t have that power.31 Judges don’t have the power, on account of the fact
that self-interest would influence their judgment.32 And while the King had the power to enforce
it at common law, that power was shared with the aggrieved subject.33 The only answer passing
Kavanaugh’s canon of ‘common sense’ is that the victims of judicial misconduct have authority
to enforce good behavior tenure. This was also true at common law, and it is the only remaining
defense the citizenry has against willful judicial indolence and sloth.34

And this was not a one-off. Six issues—including several matters of first impression35—were
summarily dismissed in a 375-word36 opinion. In essence, the court interred the Good Behavior
Clause, the Seventh Amendment and the Treaty Clause of art. VI, § 2, (an annotated copy of the
opinion is available on Scribd37), endorsing a theory of absolute governmental immunity so broad
that it disembowels the Bill of Rights.38

This suit was precipitated by a spectacle never before seen in the annals of Anglo-American
jurisprudence: justices of a state supreme court, sitting in judgment of their own tort case, in a
pendent action39 which substitute judges were expressly authorized by statute to hear.40 A more
flagrant violation of the Fifth and Fourteenth Amendment right to a fair and impartial tribunal41
can scarcely be imagined. As James Madison declared in Federalist 10, “No man is allowed to
be a judge in his own cause.”42 Violation of that iron-clad common sense rule is a fundamental
breach of the social contract.43 And yet, the law provides no remedy?

3
 During his Opening Statement, Judge Kavanaugh warranted that he would “do equal right to
the poor and to the rich.”44 And when he ascended to the federal bench, he presumptively swore
out an oath to do so. But as Smith v. Scalia proves beyond cavil, his solemn word is worse than
useless. All he could say in response to this unprecedented outrage was this:

Appellant’s claims appear to be based entirely on his dissatisfaction with acts taken by
appellees in their capacity as judges, and he has identified no cause of action that allows
him to bring any such claim.

The cause of action and its elements are stated with clarity in Carey v. Piphus, 435 U.S. 247
(1978): All a plaintiff need show is that s/he had a right to procedural due process, and that this
right was violated. In a case where a judge sits in judgment of his own cause, both elements are
met on the face of it. A plaintiff doesn’t even have to prove damages. Id. at 266-67. And if Mr.
Kavanaugh and his colleagues had bothered to read the briefs, they would have known this.

This case, and Brett Kavanaugh’s demonstrable abdication of his sworn duty to “administer
justice without respect to persons, and do equal right to the poor and the rich,” reveal two of the
ugliest secrets of the American judiciary.

1. In America, you only get as much justice as you can afford.

As Thucidides observes,45 Mankind resent Injustice in a Magistrate from whom they

expect Protection more than open Violence or Robbery in the High-ways.46

The Supreme Court has publicly declared that we have a right to “equal and impartial justice
under law.”47 And in a paroxysm of pomposity, the Court has pontificated that "[t]here can be no
equal justice where the kind of trial a man gets depends on the amount of money he has."48 But in
the real world, America suffers from a two-tier justice system, where corporate titans like former
Qwest CEO Joe Nacchio49 and wealthy plutocrats like Anna Nicole Smith50 and Hugh Caperton51
enjoy limousine treatment, and the rest of us are shunted to the back of the bus.

Show me a pro se litigant, and I’ll show you someone who ran out of money to pay lawyers.
And to not put too fine a spin on it, federal courts treat these unfortunates like black men at a
Woolworth’s lunch counter. According to retired District Judge Nancy Gertner, judges are quite

4
literally trained on "how you get rid of [pro se civil rights] cases."52 Judge Mark Bennett of the
Northern District of Iowa earned the nickname “The Terminator” for summarily dismissing pro
se employment law cases.53 Retired Judge Richard Posner recently took Judge David Faber of
the District of Maryland to task for cutting and pasting “his” opinion in a pro se case from the
Government’s brief.54 But the undisputed champion of judicial laziness Judge Robert Blackburn
of the District of Colorado, who routinely shunts pro se cases to magistrates with apparent direc-
tions to get rid of them and then failing to review them, issuing opinions bearing zero objective
evidence that he had performed his statutory duty.55

It doesn’t matter whether you are a prisoner and high-school dropout, or a seasoned litigator.
It is a common rhetorical device for federal judges to fraudulently portray the submissions of pro
se litigants as muddled and unfocused, including John Cogswell, a graduate of Yale and George-
town School of Law with some forty years’ experience at bar. He sued the Senate for its failure
to confirm judges on a timely basis—the District of Colorado was less than half-staffed, due to
the usual partisan wrangling. It was a novel question with facial merit, as to deny access to the
courts is to deny citizens their rights. But Blackburn summarily dismissed the lawsuit, claiming
that Cogswell’s objections were “ponderous and without merit.”56

Still, the most pernicious form of discrimination occurs at the appellate level. Federal appel-
late courts are de facto certiorari courts,57 where review of appeals filed by disfavored litigants—
especially, pro se litigants!—generally take less than ten minutes.58 The judicial output is so uni-
formly abysmal Judge Kozinski called “inedible sausage,” unfit for human consumption.59 Many
of the summary decisions are not just wrong, but comically so.60 But the Fourth Circuit Court of
Appeals is more of a national disgrace than an appellate court, as its reversal rate was a stunning
4.0%.61 By stark contrast, back in 1945, when judges still read briefs, held hearings, and wrote
their own opinions, the national reversal rate was a respectable 27.9%.62

It is not that modern trial judges are any better, so much as appellate judges are committing
criminal misconduct63 on an industrial scale. Speaking for a unanimous Court, Justice Ginsburg
declared that a pure "question of law" must be reviewed de novo—not “abuse of discretion,” but
de novo review.64 Fourth Circuit judge J. Harvie Wilkinson is a constitutional scholar of national
repute, who has acknowledged that it “is the solemn duty of judges on the inferior federal courts
to follow, both in letter and in spirit, rules and decisions with which we may not agree.”65 When
confronted with an appeal raising a pure question of law—whether the current regime of “discre-
tionary certiorari” is constitutional—he signed off on an opinion which stated, without any cita-
tion whatsoever to support it, that “[w]e have reviewed the record and conclude that the district
court did not abuse its discretion in finding Smith’s complaint frivolous and in dismissing the
action on that basis.”66

As Senator Whitehouse observed in his opening statement, this is “pattern evidence.”67

It is not that federal appellate judges are overworked. Judge Kavanaugh had plenty of time to
write law review articles,68 deliver speeches (Kavanaugh gave over 50 speeches to the Federalist
Society alone69), moonlight as a professor,70 and watch a lot of baseball.71 But the primary reason

5
that his work is so consistently sub-standard is that he wastes most of the little time he devotes to
his day job on an embarrassingly small fraction of his total caseload. His disgraced mentor Alex
Kozinski wasted most of his time writing as many as fifty drafts of a single opinion, and admitted
to writing opinions “precisely for the purpose of getting into” casebooks.72 And, according to his
law clerks, Judge Kavanaugh appears to be following in Kozinski’s wasteful footsteps.73 While
the privileged few—corporate titans and plutocrats—may be delighted with his judicial Bentleys,
those saddled with his rusted-out 1976 Yugos have every reason to be furious. But Kavanaugh is
not alone in his sloth and indolence. Circuit courts have devolved into barely more than playpens
for petulant lawyers who once knew a President with galaxy-class egos, who openly declare that
they are just too damn important to do their jobs.74

But when it comes to pure sloth and indolence, no one holds a candle to our Supreme Court.
As retired Justice John Paul Stevens admitted, “Supreme Court Justice” is the best part-time job
in the world.75 To say that the Justices are not overworked is an understatement: In a twenty year
period, their output declined by about 50% (from an average of 155 signed opinions for 1984-85
to about 80 in 2004-06), despite the fact that the annual number of petitions for certiorari had
nearly doubled during that time.76 And they have not discovered diligence: today, the Court only
issues about 75 opinions a year; Judge Posner authored 90 himself, and still found plenty of time
to moonlight.77

The Justices could always find time to write mindless autobiographies,78 rub elbows with the
Queen,79 and even officiate moot court.80 But no one had parlayed his position and the celebrity
attending it into a way to travel the world in resplendent fashion on other people’s money quite
like the late Antonin Scalia. Scalia’s travelogue looks a lot like most people’s bucket lists: Ber-
lin. Warsaw. Rome. London. Zurich. Lisbon. Jerusalem. Istanbul. Tokyo. Copenhagen. Dublin.
Melbourne. Reykjavik. Lima. Innsbruck. Banff. Fairbanks. Beaver Creek. Indian Wells. Jackson
Hole. Honolulu.81 And even while Court was in session, and we were paying his salary, Scalia
took a nine-day vacation halfway around the world.82

And although our Justices appear to be for sale, they don’t come cheap. The steady stream of
thinly-disguised bribes—developer Harlan Crow is this generous with all of his friends, right?—
aimed at Justice Thomas includes a $500,000 cash payment to his wife, an undisclosed number
of trips on Crow’s yacht and private jet, a $175,000 library wing named in his honor, several mil-
lion to turn the cannery his mother worked for into a museum—a project reportedly initiated by
Thomas himself—and the Bible of firebrand Black abolitionist Frederick Douglass, valued at
$19,000.83 Whether it involves attending secretive junkets offered by the Federalist Society,84
taking a bribe from a litigant,85 or duck hunting with a litigant during the pendency of a case,86
our Supreme Court is as compromised as Congress.

While Judge Kavanaugh’s mother might have taught him the importance of “equality for all
Americans—equal rights, equal dignity, and equal justice under law“—our Yodas on the federal
bench taught him to unlearn all he had learned. He counseled others on how to “testi-lie” before
the Judiciary Committee, and has put those skills to use this week. He says that “he will do equal
right to the poor and to the rich,”87 but his record shows that he already violated his first oath....

6
 But the larger problem is that he is not alone.

2. Welcome To The Soviet Union!

Just when these American citizens needed their rights the most, their government
took ‘em away. And rights aren’t rights if someone can take ‘em away. They‘re
privileges.
—George Carlin88

What good is a Bill of Rights that can’t be enforced? For a people to enjoy the blessings of
living under what John Adams called “a government of laws, not men,” the laws must be know-
able, enforceable, and of uniform application. In short, Judge Lucy cannot invite Charlie Brown
to kick the football and then, pull it away from him at the last second.

The “signed document,” of course, is the Constitution. According to its terms, we ostensibly
enjoy an array of procedural “rights,” designed to protect a portfolio of inalienable rights against
wrongful invasion by agents of government. But as Chief Justice Roberts confesses, words alone
cannot protect us:

"Do not think for a moment that those words alone will protect you; consider some other
grand words," he said before reciting similar words from the Soviet Union's constitution,
which he called "all lies."

"So by all means celebrate the words of the First Amendment," he said. "But remember
also the words of the Soviet constitution."89

Understanding that no one could be trusted with unchecked power, the Framers went to great
lengths to limit judicial discretion. But as Chief Justice Roberts points out, our Constitution is a
mere “parchment barrier.”90 And it no longer protects us. It is “all lies.”

From time immemorial, it was universally understood that judges were to declare the law, not
write it.91 But as Brutus92 and Thomas Jefferson93 warned, for two centuries, this coterie of self-
appointed “Platonic Guardians”94 has raped, beaten, and sodomized that venerable document to
the point where it is no longer even recognizable, in what Judge Robert Bork called a "judicial

7
coup d’êtat.”95 As Judge Posner summarizes, “[i]f you look at the entire body of constitutional
law, that body of law bears very little resemblance to the text of the Constitution in 1789, 1791,
and 1868.”96 And under the judges’ SCOTUStitution,97 additions and subtractions have been so
extensive that the Bill of Rights can fairly be called “The Bill of Polite Suggestions.” Acting on
a fraudulent pretense of repugnancy,98 our Imperial Judiciary has relegated every constitutional
constraint on their power to the dust-bin of history.

The Framers’ Constitution99 contained an array of effective limitations on government power

in general, and judicial power in particular. If the government violated your rights, you could sue
for damages.100 In a proper Seventh Amendment jury trial, the jury decided questions of law and
fact,101 effectively removing corrupt judges from the process.102 When a judge acted corruptly in
your case, you could remove him from the bench under the Good Behavior Clause.103 If a judge
was committing crimes on the bench, you could even prosecute him criminally—a right that is
still ubiquitous throughout the civilised world.104 And under the Civil Rights Act of 1871 (now,
42 U.S.C. § 1983), state judges were liable in tort for civil rights violations.

But in their quest for absolute power, our judiciary has made these remedies all disappear.

The Framers’ Constitution also contained procedural safeguards which, if observed, would
control judicial abuses of office in all but the most extreme circumstances. The first, of course, is
the civil jury trial, now all but extinct.105 The second was a written opinion by a judge—today,
virtually all opinions are written by clerks, of which some are still in law school. The third was
traditional appellate review, where you were able to argue in front of judges who had actually
read your briefs, and receive an opinion written by judges. The fourth was mandatory review by
the Supreme Court upon a writ of error or certiorari, resulting in a written opinion with binding
precedential effect.106 Finally, there was the discipline imposed by stare decisis.107

But in their quest for absolute power, our judiciary made these all safeguards disappear.

The end result is summarized by Judge Bork:

The illegitimacy of the Court's departures from the Constitution is underscored by the fact
that no Justice has ever attempted a justification of the practice. At most, opinions have
offered, as if it solved something, the observation that the Court has never felt its power
confined to the intended meaning of the Constitution. True enough, but a long habit of
abuse of authority does not make the abuse legitimate. That is particularly so when the
representative branches of government have no effective way of resisting the Court's
depredations.

Viewing the carnage created by the Court, George Will referred to the Justices as "our
robed masters." When the VMI decision came down, my wife said the Justices were be-
having like a "band of outlaws." Neither of those appellations is in the least bit extreme.
The Justices are our masters in a way that no President, Congressman, governor, or other
elected official is. They order our lives and we have no recourse, no means of resisting,

8
 no means of altering their ukases. They are indeed robed masters. But "band of outlaws"?
An outlaw is a person who coerces others without warrant in law. That is precisely
what a majority of the present Supreme Court does. That is, given the opportunity,
what the Supreme Court has always done.108

3. Brought to you by Exxon: King John I of Roberts

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

says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a
majority of the nine lawyers on the Supreme Court.
—Justice Antonin Scalia109

While Justice Scalia enjoyed being our Ruler so much that he was happy to “work for free,”110
when the Court’s most petulant toddler didn’t get his way, he threw tantrums any three-year-old
would be proud of. And in his anger, he inadvertently uttered the truth: that our Supreme Court is
no longer a court, but an unelected super-legislature, no longer constrained by even the Constitu-
tion itself. “This practice of constitutional revision … has rob[bed] the People of the most impor-
tant liberty they asserted in the Declaration of Independence and won in the Revolution of 1776:
the freedom to govern themselves.”111 As Abraham Lincoln declared, "no man is good enough to
govern another man, without the other’s consent,"112 and the Framers’ Constitution—and not the
SCOTUStitution, as rewritten by our judges—marks the outer limit of our consent.

The collective temper tantrum thrown by Scalia, Thomas, and Roberts in Obergefell was an
admission of guilt. If our judges have only the power “to say what the law is, not what it should
be,”113 and it is wrong for them to recognize unenumerated rights they do not construe as “funda-
mental,”114 then a fortiori, it is unlawful for judges to “interpret” clear constitutional provisions
into oblivion. But that was precisely what they have been doing for centuries. The list of sins is
long and, as Scalia observes, has had one overriding aim—to consolidate judicial power:

9
 [T]he Court does not wish to be fettered by any such limitations on its preferences. The
Court's statement that it is "tempting" to acknowledge the authoritativeness of tradition in
order to "cur[b] the discretion of federal judges," ante, at 847, is of course rhetoric rather
than reality; no government official is "tempted" to place restraints upon his own freedom
of action, which is why Lord Acton did not say "Power tends to purify." The Court's
temptation is in the quite opposite and more natural direction—towards systematically
eliminating checks upon its own power; and it succumbs.115

The Court’s jihad against constraints upon their power began with evisceration of the Seventh
Amendment.116 They gave their guild an absolute immunity against civil suits,117 extending it to
prosecutors,118 States,119 and even the federal government.120 And where it leaves us—the people
who were once citizens, and are now subjects—is truly frightening.

As Suetonius duly records, the Roman emperor Caligula imposed taxes on food, lawsuits, and
wages, but did not publish his tax laws; as a result, "great grievances were experienced from the
want of sufficient knowledge of the law. At length, on the urgent demands of the Roman people,
he published a law, but it was written in a very small hand, so that no one could make a copy of
it."121 If anything, our predicament is even worse: We can read the published ‘”law” until we go
blind, but we cannot rely on them. (A list of Supreme Court precedents which are still ‘good law’
in theory, but can no longer be safely relied on, is included in a footnote122 below.)

At least in theory, we enjoy certain rights including, but not limited to, that of "equality before
the law," 123 to procedural due process,124 to have our grievances heard by a fair and independent
tribunal,125 and to rely on pronouncements of our courts as authoritative expositions of what "the
law" is,126 which are "conferred, not by legislative grace, but by constitutional guarantee." 127 But
in the real world, the highest and best use of the Bill of Rights is as toilet paper. And here is
where Brett Kavanaugh comes in.

First, Kavanaugh has acted in furtherance of a scheme to rob Americans of their rights under
law. Second, he has also acted in furtherance of a larger criminal scheme, accurately described
by Senator Whitehouse as a corporate takeover of the federal judiciary and with it, our Republic
as a whole. And what Madison reminded the Virginia legislature of is equally true today: “The
preservation of a free Government requires not merely, that the metes and bounds which separate
each department of power may be invariably maintained; but more especially, that neither of
them be suffered to overleap the great Barrier which defends the rights of the people. The Rulers
who are guilty of such an encroachment, exceed the commission from which they derive their
authority, and are Tyrants. The People who submit to it are governed by laws made neither
by themselves, nor by an authority derived from them, and are slaves.”128

For these reasons, I submit that Brett Kavanaugh is unfit to be dog-catcher.

Respectfully submitted,
Ken Smith (23636 Genesee Village Rd., Golden, CO 80401)

10
.
ENDNOTES
__________________________________________________________________________________________________________________

1
Brett Kavanaugh’s Opening Statement to Senate Judiciary Committee, CNN, Sept. 4, 2018.
2
Confirmation Hearing On the Nomination of Brett Kavanaugh To Be Circuit Judge for the District of Columbia
Circuit, S. Comm. on the Judiciary, 109th Cong., 435 (May 9, 2006) (statement of Brett Kavanaugh).
3
Supra, n. 1.
4
No. 14-5180 (D.C. Cir. Jan. 14, 2015) (per curiam).
5
U.S. Const. art. III, § 1.
6
As a point of order, it would be affirmative relief: a trial with the purpose of enforcing the Good Behavior Clause.
7
Saikrishna Prakash, and Steven D. Smith, How to Remove a Federal Judge, 116 Yale L.J. 72 (2006), and follow-up
articles.
8
Raoul Berger, Impeachment of Judges and “Good Behavior” Tenure, 79 Yale L.J. 1475 (1970); see generally, R.
Berger, lmpeachment: The Constitutional Problems (Harvard U. Pr. 1974).
9
English law sourced in Coke, Blackstone, and the Year Books, defines this seemingly abstruse term of legal art
with remarkable precision. By making a public official subject to removal for violating it, the condition of “good
behavior” defined the powers of any given office. Coke listed three grounds for forfeiture of good behavior tenure:
abuse of office, nonuse of office, and willful refusal to exercise an office. R. v. Bailiffs of Ipswich [1706] 91 Eng.
Rep. 378 (K.B.) (corporate recorder forfeited office for failure to attend corporate meetings); Henry v. Barkley
[1596] 79 Eng. Rep. 1223, 1224 (K.B.); see generally, Saikrishna Prakash & Steven D. Smith, How to Remove A
Federal Judge, 116 Yale L.J. 72, 88-128 (2006). Blackstone adds "oppression and tyrannical partiality of judges,
justices, and other magistrates, in the administration and under the colour of their office." 4 Blackstone, Commen-
taries at 140. When an Article III judge is elevated to the federal bench, s/he swears an oath to "administer justice
without respect to persons, and do equal right to the poor and to the rich, and … faithfully and impartially discharge
and perform all the duties incumbent upon" him or her, 28 U.S.C. § 453, thereby defining the scope of his duties and
obligations.
10
Good behavior tenure, and use of the scire facias to enforce it, is almost as old as Magna Carta. The writ itself can
be traced to the early fourteenth century; it was used to punish abuses of office since the reign of Edward VI. 2&3
Edw. 6, c. 8, §13 (ca. 1540). Whereas most agents of the Crown served "at the pleasure of the King," some public
officials were granted a freehold in their offices, but conditioned on "good behavior." See e.g., 4 Coke, Inst. of the
Laws of England 117 (Baron of the Exchequer). Lesser lords were also given authority to bestow freeholds, creating
an effective multi-tiered political patronage system where everyone from paymasters to judges to parish clerks had
job security. See e.g., Harcourt v. Fox [1692], 1 Show. 426 (K.B.) (clerk of the peace). The writ was in use before
Parliament thought to grant all British judges good behaviour tenure, and the law was well-developed.

At common law, good behavior tenure was originally enforced by the sovereign. But as this power concerned
only the interests of his subjects, and the King exercised it only in parens patriae, he was bound by law to allow the
use of it to any subject interested. Blackstone explains:

WHERE the crown hath unadvisedly granted any thing by letters patent, which ought not to be granted, or
where the patentee hath done an act that amounts to a forfeiture of the grant, the remedy to repeal the
patent is by writ of scire facias in chancery. This may be brought either on the part of the king, in order to
resume the thing granted; or, if the grant be injurious to a subject, the king is bound of right to permit him
(upon his petition) to use his royal name for repealing the patent in a scire facias.

3 Blackstone, Commentaries at 260-61 (1765) (emphasis added); see, United States v. American Bell Tel. Co., 28
U.S. 315, 360 (1888) (explaining the process).

11
11
Upton Sinclair, I, Candidate for Governor: And How I Got Licked 109 (U. Cal. Press 1994) (1935).
12
Laurence Tribe, American Constitutional Law 744 (2d ed. 1988) (italics in original).
13
Stephen Breyer, Making Our Democracy Work: A Judge’s View 83 (2010). Former Chief Justice Hughes adds,
"there is no better precaution against judicial mistakes than setting out accurately and adequately the material facts as
well as the points to be decided." Charles E. Hughes, The Supreme Court of the United States 64 (1928).
14
Bounds v. Smith, 430 U.S. 817, 822 (1977). More directly, we have a constitutional right to "equal and impartial
justice under the law," Leeper v. Texas, 139 U.S. 462, 468 (1891), and where “there is a legal right, there is also a
legal remedy by suit, or action at law, whenever that right is invaded," Marbury v. Madison, 5 U.S. 137, 163 (1803),
for to “take away all remedy for the enforcement of a right is to take away the right itself.” Poindexter v Greenhow,
114 U.S. 270, 303 (1884).
15
The existence of jurisdiction "creates an implication of duty to exercise it, and that its exercise may be onerous
does not militate against that implication." Mondou v. New York, N.H. & H.R. Co., 223 U.S. 1, 58 (1912).
16
18 U.S.C. §§ 241-42 (conspiracy against/deprivation of rights). And this is no venial sin: As Justice Moody wrote
a century ago, “[t]he right to sue and defend in the courts … is the right conservative of all other rights.” Chambers
v. Baltimore & Ohio R. Co., 207 U.S. 142, 148 (1907).
17
Supra, n. 1.
18
Supra, n. 1. Justice Frankfurter counseled that we should read the law "with the saving grace of common sense."
Bell v. United States, 349 U.S. 81, 83 (1955).
19
Marbury v. Madison, 5 U.S. 137, 174 (1803). The case is the first or second one featured in most if not all consti-
tutional law textbooks, for obvious reasons.
20
Montclair v. Ramsdell, 107 U.S. 147, 152 (1883).
21
Jarrolt v. Moberly, 103 U.S. 580, 586 (1880); accord, e.g., Heydon's Case [1584] 76 Eng. Rep. 637, 638 (K.B.)
(“the office of all judges is always to make such construction [of a law] as shall suppress the mischief, advance the
remedy, and to suppress subtle invention and evasions for continuance of the mischief … according to the true intent
of the makers of the act").
22
Connecticut Nat’l Bank v. Germain, 503 U.S. 249, 253-54 (1992) (quotations omitted; collecting cases covering
two centuries).
23
3 J. Elliot, Debates on the Federal Constitution 531 (1836). This was accepted by Judge Pendleton, Chief Justice
Marshall, and Edmund Randolph in the course of debate, id. at 546, 558-59, 573, and Marshall applied it in United
States v. Wilson, 32 U.S. 150, 160 (1833), in finding that the scope of the President’s pardon power was determined
by reference to English law.
24
The Federalist No. 87, 437 (Alexander Hamilton) (I. Kramnick ed. 1987).
25
Supra, n. 7.
26
Yes, this really happened. Felisa Cardona, Feds grill Nacchio judge's ex-wife, Denver Post, Aug. 14, 2007; .Judge
issues statement on strip club visits, Summit Daily News (AP), Aug. 11, 2007. But though it was boorish behavior—
giving new meaning to the phrase, “sober as a judge”—it was perfectly legal.
27
Coke and Blackstone listed four separate grounds for violation of good behavior tenure relevant to judges: abuse
of office, nonuse of office, willful refusal to exercise an office, and oppression and tyrannical partiality. Supra, n. 8.
The oath of office—which has not changed since 1791, Judiciary Act of 1789, 1 Stat. 73 (Sept. 24, 1789), leaves a

12
clear road map for judges to follow. For instance, Chief Justice Marshall observed that a court has “no more right to
decline the exercise of jurisdiction which is given, than to usurp that which is not given,” and to do so would consti-
tute “treason to the Constitution,” Cohens v. Virginia, 19 U.S. 264, 404 (1821)—which constitutes either an abuse of
office or willful refusal to exercise it. Similarly, the other Justice Marshall opines that the "essence of equal justice
under law" is that "[t]he principles which would have governed with $10,000 at stake should also govern when
thousands have become billions." Pennzoil Co. v. Texaco Inc., 481 U.S. 1, 27 (1987) (Marshall, J., concurring).
When a judge treats claims brought by a pro se litigant in a cursory manner, but gives an oligarch represented by
Theodore Olsen the limousine treatment, s/he has failed to “do equal right to the poor and to the rich,” which is a
form of tyrannical partiality.
28
The lower-court ruling is even more surreal. In deliberate disregard of Jacobs v. United States, 290 U.S. 13, 16
(1933) (Fifth Amdt. takings clause is an implied waiver of immunity), the scholarship of Antonin Scalia, Antonin
Scalia, Historical Anomalies in Administrative Law, Y.B. Supreme Court Hist. Soc’y. 103 (1985) (“[a]t the time of
Marbury v. Madison there was no doctrine of domestic sovereign immunity, as there never had been in English
law”; emphasis in original). and the canon of common sense, Judge Ketanji Brown Jackson effectively declared that
the Bill of Rights may be voided by Congress (or judges) because the Framers failed to enact an Eleventh Amend-
ment declaring that "we really, really, REALLY DO mean it!" An annotated version of that ruling is available on
Scribd at https://www.scribd.com/document/387987194/Smith-v-Scalia-Ketanji.
29
Raoul Berger, Impeachment: The Constitutional Problems (2d ed.), 132 (Harvard U. Press 1999).
30
Supra, n 4.
31
During debate over the Chase impeachment, Congress acknowledged its inability to enforce good behavior tenure.
Senator Hemphill recounted the Framers’ intent that "the words in the Constitution rendered the judges independent
of both the other branches of government." 5 Elliot’s 444 (remarks of Sen. Hemphill (F-PA). As the right to decide
what is or is not "good behavior" sua sponte is a de facto power of address, it does not appear to have been the intent
of the Framers to entrust that power to Congress. This view was reinforced a established a century ago in the investi-
gation of Judge Emory Speer of the District of Georgia, who was charged with "despotism, tyranny, oppression, and
maladministration" in the course of his judicial decision-making. Charles Geyh, When Courts and Congress Collide:
The Struggle for Control of America’s Courts 160 (U. Mich. Press 2008). Specifically, the congressional committee
concluded that "a series of legal oppressions [constituting] an abuse of judicial discretion" did not constitute an
impeachable offense, id. at 160-61 (quotations omitted), despite their being self-evident serial violations of his good
behavior tenure.
32
When judges judge their fellow judges, they display a pronounced and well-documented propensity for indulging
in what the Breyer Commission described as “undue ‘guild favoritism.’” Stephen Breyer, et al., Implementation of
the Judicial Conduct and Disability Act of 1980: A Report to the Chief Justice (Sept. 2006) at 1. As Senior Judge
John L. Kane of the District of Colorado related to the Washington Post, the reason is painfully obvious, as one of
his colleagues said: “'John, think about it. The next time it could be you or me. We've got to stick together.' " Ronald
Rotunda, The Courts Need This Watchdog, Wash. Post, Dec. 21, 2006, at A-29 (emphasis added); see Cleavinger v.
Saxner, 474 U.S. 193, 204 (1985) (re: favoritism).
33
Supra, n. 10.
34
Tools in the Framers’ Constitution capable of combating judicial corruption include the Seventh Amendment jury
trial, which they intended to have “preserved” for posterity. But the outlaws on our judiciary have relegated it to the
scrap heap of history.
35
An outline of issues raised on the appeal before Judge Kavanaugh:

1. Article III judges cannot make law (CJ Roberts).

Ergo, they cannot make constitutional rights, passages, or treaties “disappear” (Hamilton).

2. Seventh Amendment “preserves” the jury trial.

13

In 1789, the jury decided all questions of both facts and law (CJ Jay).

In summary judgment, a judge decides both the facts and law, eliminating the civil jury as a check
against judicial corruption.

Ergo, summary judgment violates the Seventh Amendment.

3. Article III contains the “good Behaviour” clause.

Framers said what they meant and meant what they said (Germain).

“Good behaviour” and method of enforcement both prescribed by common law (Blackstone).

Ergo, the Framers intended to implement the common law rule (Madison, Wilson).

4. Absolute judicial and sovereign immunity are judge-made law, abolished by treaty.

Domestic sovereign immunity was unknown to the Framers (Scalia).

States admit that they don’t have sovereign immunity either (Evans).

Absolute judicial/sovereign immunity was judge-made common law.

The ICCPR is a valid treaty abolishing all common-law immunities..

Ergo, defense of judicial/sovereign immunity is unavailable as a matter of law.

5. Absolute immunity renders the Bill of Rights unenforceable.

Taking away all remedies takes away the right (Poindexter).

Discretionary “cert” eliminates every other remedy to victims of judicial caprice.

Ergo, not even Congress can grant absolute immunity.

6. The right to private criminal prosecution (PCP) was retained by the people.

Bill of Rights preserves ancient common law safeguards against abuse of authority.

PCP was/is available at common law for 500 years (Gouriet).

No reasonable citizen would have ceded this “inestimable” (Blyew) right.

Ergo, even Congress cannot extinguish it.
36
Not including the boilerplate order and declaration that the opinion is unpublished.
37
https://www.scribd.com/document/387987001/Smith-v-Scalia-Kavanaugh
38
Whenever a judge wants an outcome badly enough, s/he will “lie to get it." Karl N. Llewellyn, The Common Law
Tradition: Deciding Appeals 135 (1960). Judge Posner observes that judges "are constantly digging for quotations
from and citations to previous cases to create a sense of inevitability about positions that they are in fact adopting on
grounds other than deference to precedent." Richard Posner, How Judges Think 144 (Harvard U. Pr. 2008). And
when they do, their deception is often painfully obvious. Alan Dershowitz adds that “You will be amazed at how
often you will find judges “finessing” the facts and the law. Alan Dershowitz, Letters To a Young Lawyer 11 (Basic
Books 2001).

While every citizen has the right to "equal and impartial justice under the law," Leeper v. Texas, 139 U.S. 462,
468 (1891), “[t]o take away all remedy for the enforcement of a right is to take away the right itself.” Poindexter v.
Greenhow, 114 U.S. 270, 303 (1884). If absolute judicial immunity protects judges who willfully violate the law,
absolute sovereign immunity protects the government from tort liability under respondeat superior, and we no longer
have a right to demand certiorari review in the United States Supreme Court, The Judiciary Act of 1925, 43 Stat. 936
(1925); see, Sup. Ct. R. 10; see also, Stephen G. Breyer, Reflections on the Role of Appellate Courts: A View from
the Supreme Court, 8 J. App. Prac. & Process 91, 92 (2006), there is literally no remedy available if a band of out-
laws in black robes choose to vent their spleen on you. Gregoire v. Biddle, 177 F. 2d 579, 581 (2d Cir. 1949).
39
Smith v. Mullarkey, 121 P.3d 890 (Colo. 2005) (per curiam). In one of many irregular decisions, the entire federal
lawsuit was dismissed on putative jurisdictional grounds in an unpublished opinion. Smith v. Mullarkey, 67 F.App’x.
535 (10th Cir. 2003). Openly admitting that “Plaintiff sought declarations that the Colorado bar admission process
and certain admissions rules were unconstitutional,” id, slip op. at 4, the Circuit found that it had no jurisdiction, in
open defiance of Supreme Court and published Circuit precedent. District of Columbia Court of Appeals v. Feldman,

14
460 U.S. 462, 486 (1983) (all facial challenges to bar statute survive Rooker-Feldman), and Roe v. Ogden, 253 U.S.
1225 (10th Cir. 2001) (prospective bar applicants have standing to challenge Colorado bar admission statute). See,
Exxon Mobil Corp. v. Saudi Basic Industries Corp., 544 U.S. 280 (2005), wherein this Court "finally interred the so-
called "Rooker-Feldman doctrine" … a doctrine that has produced nothing but mischief for 23 years." Lance v. Den-
nis, 546 U.S. 459, 468 (2006) (Stevens, J, dissenting on other grounds).
40
As judges of the Colorado Court of Appeals may "serve in any state court with full authority as provided by law,
when called upon to do so by the chief justice of the supreme court," Colo. Rev. Stat. § 13-4-101, the “Rule of
Necessity” is inapplicable.

It is standard practice in states with statutory or constitutional provisions analogous to C.R.S. § 13-4-101 for
conflicted supreme court justices to recuse. See e.g., Mosk v. Superior Court of Los Angeles, 601 P.2d 1030 (Calif.
1979) (also collecting cases from North Dakota, Washington, and Wyoming); Lorenz v. N. H. Admin. Office of the
Courts, 858 A.2d 546 (N.H. 2004), Sullivan v. McDonald, 913 A.2d 403 (Conn. 2007). In every case in every
common law jurisdiction confronting it, the Rule was only applicable where no substitute judge could be found. See
e.g., Dickason v. Edwards [1910] 10 CLR 23 (Australia); Reference re Remuneration of Judges of the Provincial
Court (P.E.I.) [1998] 1 S.C.R. (Canada), Ruben v. Petewon, 14 FSM Intrm. 146 (Chk. S. Ct. App. 2006) (Microne-
sia).

There is no contrary authority.

41
E.g., Tumey v. Ohio, 273 U. S. at 523, 531-534 (judge violated due process by sitting in a case in which it would
be in his own financial interest to find against one of the parties); Aetna Life Ins. Co. v. Lavoie, 475 U. S. 813, 822-
825 (1986) (same); Ward v. Monroeville, 409 U. S. 57, 58-62 (1972) (same); Johnson v. Mississippi, 403 U. S. 212,
215-216 (1971) (per curiam) (judge violated due process by sitting in a case in which one of the parties was a previ-
ously successful litigant against him); Bracy v. Gramley, 520 U. S. 899, 905 (1997) (would violate due process if a
judge was disposed to rule against defendants who did not bribe him in order to cover up the fact that he regularly
ruled in favor of defendants who did bribe him); In re Murchison, 349 U. S. 133, 137-139 (1955) (judge violated
due process by sitting in criminal trial of a defendant whom he had indicted); see also, Gibson v. Berryhill, 411 U.S.
564 (1973) (administrative agency).

Colorado law is in full accord. "Even where the trial judge is convinced of his own impartiality, the integrity of
the judicial system is impugned when it appears to the public that the judge is partial." People v. Botham, 629 P.2d
589, 595 (Colo. 1981); see also, e.g., People v. Dist. Court, 192 Colo. 503, 508, 560 P.2d 828, 831 (1977) ("Courts
must meticulously avoid any appearance of partiality."); Johnson v. Dist. Court, 674 P.2d 952, 956 (Colo. 1984)
("Although the trial judge is convinced of his or her own impartiality, if it nonetheless appears to the parties or to the
public that the judge may be biased or prejudiced, the same harm to public confidence in the administration of justice
occurs."); Nordloh v. Packard, 45 Colo. 515, 521, 101 P. 787, 790 (1909) (stating that the impartial administration
of justice is necessary "to retain public respect and secure willing and ready obedience to [courts'] judgments").

Again, there is no contrary authority.

42
The Federalist No. 78, 124 (James Madison) (I. Kramnick ed. 1987); accord, e.g., Thomas Hobbes, Leviathan 172
(A.R. Walter ed., Cambridge Press 1904) (1651).
43
As former Judge Michael McConnell of the Tenth Circuit put it,

the essence of the social contract is that we relinquish certain of our natural rights—most fundamentally, the
right to be a judge in our own case and to do violence—use violence against others, and we receive in return
more effectual protection for certain of our rights, plus the enjoyment of certain positive rights: that is,
rights that are created by the creation of political society. Civil rights are the rights we enjoy after entering
the state of civil society.…

Michael W. McConnell, Natural Rights, Enumerated Rights, and the Ninth Amendment, Sumner Canary Lecture
(Case Western U., Wednesday, Oct. 28, 2008) (transcribed by author; emphasis added), video available at

15
http://www.youtube.com/watch?v=bLANRrZPm-k (last visited Mar. 16, 2009).
44
Supra n. 1.
45
Thucydides, 1 History of the Peloponnesian War 148 (William Smith trans. 1818) (ca. 410 B.C.) (“But mankind,
it seemeth, resent the acts of injustice more deeply than the acts of violence.”)
46
Peter Hughes, Georgicum: Or, A Supplement to the Mirror of Justices 31 (1716).
47
Caldwell v. Texas, 137 U.S. 692, 697-98 (1891).
48
Griffin v. Illinois, 351 U.S. 12, 19 (1965).
49
United States v. Nacchio, 519 F.3d 1140 (10th Cir. 2008).
50
Marshall v. Marshall, 547 U.S. 293 (2006).
51
Caperton v. A.T. Massey Coal Co., 556 U.S. 868 (2009).
52
Nancy Gertner (blog reply), Civil jury trials, summary judgment, employment cases and the Northern District of
Georgia study–preliminary observations, Hercules and the Umpire (blog of Senior Judge Kopf, Dist. of Nebraska),
Oct. 22, 2013, at http://herculesandtheumpire.com/2013/10/22/civil-jurytrials-summary-judgment-employment-
cases-and-the-northern-district-of-georgia-study-preliminary-observations/ (copy on file).
53
Mark W. Bennett, Essay: From the “No Spittin’, No Cussin’ and No Summary Judgment” Days of Employment
Discrimination Litigation to the “Defendant’s Summary Judgment Affirmed Without Comment” Days: One Judge’s
Four-Decade Perspective, 57 N.Y.L. Sch. L. Rev. 685, 688 & n. 11 (2012–2013).
54
Reply Brief, Bond v. United States, No. 17-2150 (4th Cir. Filed May 14, 2018).
55
E.g., Cogswell v. United States Senate, No. 08-cv-01929-REB-MEH (D.Colo. Mar. 2, 2009), Shell v. Devries, No.
06-cv-00318-REB-BNB (D.Colo. Jan. 30, 2007), Signer v. Pimkova, No. 05-cv-02039-REB-MJW (D.Colo. Nov.
30, 2006), Smith v. United States Court of Appeals for the Tenth Circuit, No. 04-RB-1222 (OES) (Oct. 15, 2004).
56
Blackburn’s ruling [Cogswell, supra] was boilerplate, boiling down to “Because I SAID so!”:

As required by 28 U.S.C. § 636(b), I have reviewed de novo all portions of the recommendation to which
objections have been filed, and have considered carefully the recommendation, objections, and applicable
caselaw. Even though plaintiff is a licensed attorney, in an abundance of caution because plaintiff is
proceeding pro se, I have construed his pleadings more liberally and held them to a less stringent standard
than formal pleadings drafted by lawyers. See Erickson v. Pardus, 551 U.S. 89 ___, 127 S.Ct. 2197, 2200,
167 L.Ed.2d 1081 (2007); Andrews v. Heaton, 483 F.3d 1070, 1076 (10th Cir. 2007); Hall v. Belmon, 935
F.2d 1106, 1110 (10th Cir. 1991) (citing Haines v. Kerner, 404 U.S. 519,520-21 (1972)). The recommen-
dations are detailed and well-reasoned. Contrastingly, plaintiff's Objections are imponderous and without
merit.
57
William M. Reynolds & William L. Richman, Elitism, Expediency, and the New Certiorari: Requiem for the
Learned Hand Tradition, 81 Cornell L. Rev. 273, 275 (1995-96); see Penelope J. Pether, Constitutional Solipsism:
Toward a Thick Doctrine of Article III Duty; Why the Federal Circuits’ Nonprecedential Status Rules are (Pro-
foundly) Unconstitutional, 17 W.&M. Bill Rts. J. 955, 977 (2009).
58
See e.g., Alex Kozinski, Letter (to Judge Samuel A. Alito, Jr.), Jan. 16, 2004 at 5 (~150 rulings made in a two-day
session); Perfunctory Justice; Overloaded Federal Judges Increasingly Are Resorting to One-Word Rulings, Des
Moines Register, Mar. 26, 1999, at 12 (fifty appeals decided in two hours); Stephen Breyer, Administering Justice in
the First Circuit, 24 Suffolk U. L. Rev. 29, 32-33 (1990) (a typical appeal “takes only a little of their time”).

16
59
Tony Mauro, Difference of Opinion, Legal Times, Apr. 12, 2004; see Alex J. Kozinski and Stephen R. Reinhardt,
Please Don’t Cite This! Why We Don’t Allow Citations to Unpublished Dispositions, California Lawyer, June 2000,
at 43 As Judge Murnaghan of the Fourth Circuit openly admitted, “it is well known that judges may put considerably
less effort into opinions that they do not intend to publish. Because these opinions will not be binding precedent in
any court, a judge may be less careful about his legal analysis, especially when dealing with a novel issue of law.
Wilson v. Layne, 141 F.3d 111, 124 n. 6 (4th Cir. 1998) (Murnaghan, J., dissenting). That is putting it politely.
60
See e.g., Harrington v. Wilson, No. 06-1418 (10th Cir. Jun. 7. 2007) (withdrawn) (matter dismissed for lack of
jurisdiction dismissed ‘with prejudice’); cf., Ex parte McCardle, 74 U.S. 506, 514 (1869). Former Judge Michael
McConnell, who taught law at both Harvard and Stanford while sitting on that Court, Mirela Turc, Judge Michael
McConnell Speaks About the Ninth Amendment, The Observer (Case West. U.), Oct. 31, 2008 (bio), was respon-
sible for that bloody juridical abortion.
61
U.S. Courts of Appeals—Decisions in Cases Terminated on the Merits, by Nature of Proceeding—During the 12-
Month Period Ending September 30, 2013 tbl. B-5 (2013).
62
Dir. of the Admin. Off. of U.S. Cts., Ann. Report 70 tbl.B1 (1945)
63
See 18 U.S.C. §§ 241-42 (denial of civil rights). Access to the courts is not a privilege, but a right.
64
Elder v. Holloway, 510 U.S. 510, 516 (1994).
65
J. Harvie Wilkinson III, Of Guns, Abortions, and the Unraveling Rule of Law, 95 Va. L. Rev. 253, 255 (2009).
66
Smith v. Kagan, No. 15-1347 (4th Cir. Sept. 21, 2015) (slip op. at 3).
67
Senator Sheldon Whitehouse, Kavanaugh Confirmation Hearing Opening Statement, Sept. 4, 2018 (as prepared
for delivery), available at https://www.whitehouse.senate.gov/news/release/whitehouse-reveals-kavanaughs-pro-
corporate-right-wing-record-in-scotus-hearing-opener.
68
E.g., Brett M. Kavanaugh, Separation of Powers During the Fourty-Fourth Presidency and Beyond, 93 Minn. L.
R. 1454 (2009).
69
Supra n. 67.
70
Brett M. Kavanaugh: Professional Biography, U.S. Court of Appeals for the D.C. Circuit (website) (accessed Sep.
7, 2018; copy on file), at https://www.cadc.uscourts.gov/internet/home.nsf/Content/VL+-+Judges+-+BMK
71
David A. Graham, The Mystery of Brett Kavanaugh’s Baseball-Ticket Debt, The Atlantic, Jul. 12, 2018.
72
Emily Bazelon, The Big Kozinski, Legal Affairs, Jan-Feb. 2004. Kozinski resigned amidst credible charges that he
had sexually harassed female law clerks; like Sergeant Schultz, Kavanaugh “saw nothing! Nothing!”
73
Kavanaugh “drafts opinions painstakingly, writing and rewriting until he is satisfied each opinion is clear and well-
reasoned, and can be understood not only by lawyers but by the parties and the public.“ Amit Agarwal. et al., Letter
(to Chuck Grassley), Jul. 9, 2018 at 2.
74
As Professor Richman observes, judicial arrogance and elitism is ubiquitous among appellate judges:

[A]s the docket is "dumbed-down" by an overwhelming number of routine or trivial appeals, judges become
accustomed to seeking routine methods of case disposition. . . . Just as the player's competitive edge will
erode from lack of peer contact, so are judges' legal talents jeopardized by a steady diet of minor appeals.
[Edith Jones, CA-5]

A larger appellate judiciary would include "an unacceptable number of mediocre and even a few
unqualified people," and the quality of an enlarged federal judiciary would be "indistinguishable from the

17
 most pedestrian of state judiciaries." [Jon Newman, CA-2]

The desirability of being a federal judge is inversely proportionate to the number of routine cases brought to
federal court. . . . The professional quality of those who seek a federal judgeship is inevitably affected by
the prestige, the challenges and the responsibilities of being a federal judge. [the late Alvin Rubin]

William M. Richman, Much Ado About the Tip of an Iceberg, 62 Wash. & Lee L. Rev. 1723 (2005) (unpaginated
text-based copy, reprinted at http://www.nonpublication.com).
75
“Seated in a comfortable chair on a stage at the University of Florida recently, Stevens betrayed no sign that he is
preparing to retire, remarking only that if the court had maintained the same heavy caseload today it had when he
became a justice in 1975, ‘I would have resigned 10 years ago.’” Justice Stevens Shows No Signs Of Quitting, AP,
Nov. 29, 2008.
76
David R. Stras, The Supreme Court’s Gatekeepers: The Role of Law Clerks in the Certiorari Process, 85 Tex. L.
Rev. 947, 979, 982, 987 (2007).
77
Ronald K.L. Collins, Posner on Case Workloads & Making Judges Work Harder, Concurring Opinions (blog),
Dec. 24, 2014 (available at http://concurringopinions.com/archives/2014/12/posner-oncase-workloads-making-
judges-work-harder.html; his CV is available at http://www.law.uchicago.edu/faculty/posner-r.
78
Frank Rich, Nobody Knows the Lynchings He’s Seen, N.Y. Times, Oct. 7, 2007 (in re: Justice Thomas autobio-
graphy, “My Grandfather’s Son”). Unlike President Clinton—who has enough common decency and sense of shame
to refrain from lecturing on the joys of monogamy—Justice Thomas has evolved into a paragon of pomposity:

“Today there is much focus on our rights,” Justice Thomas said. “Indeed, I think there is a proliferation of rights
. . . I am often surprised by the virtual nobility that seems to be accorded those with grievances,” he said.
“Shouldn’t there at least be equal time for our Bill of Obligations and our Bill of Responsibilities?”

Adam Liptak, Reticent Justice Opens Up to a Group of Students, N.Y. Times, Apr. 13, 2009.

Justice Thomas conveniently appears to have forgotten that with the grant of the Article III judicial power comes
certain obligations and responsibilities. But then again, when you edit out the orgiastic stream of self-serving state-
ments littering his comical act of literary masturbation, you uncover the real Clarence Thomas—a man so hopelessly
self-absorbed that even doing his job was a colossal imposition:

In the course of writing this book, I spent far too many solitary hours facing blank pages, digging through dusty
boxes full of half-forgotten files, and plowing up long-untilled parts of my past.

Clarence Thomas, My Grandfather’s Son ix (HarperCollins, 2007).

79
Queen Elizabeth II Opens New UK Supreme Court, Assoc. Press, Oct. 17, 2009 (four Justices attended—while
the Court was in session).
80
Jessica Martin, Students Argue Before Chief Justice Roberts, The Record (Washington Univ.) Jan. 15, 2007.
81
See Antonin Scalia, Forms AO-10 (Financial Disclosure Report for Calendar Years 2003-2009), reprinted at
http://www.judicialwatch.org/judge/scaliaantonin.
82
Antonin Scalia, Form AO-10 (for Calendar Year 2004) at 4 (attending conference in Auckland, NZ from Oct. 19-
27, 2004).
83
Mike McIntire, The Justice and the Magnate, N.Y. Times, Jun. 19, 2011, at A-1.
84
Brian Ross, Supreme Ethics Problem, ABC News, Jan. 23, 2006.

18
85
Specifically, Scalia accepted a ride on Vice-President Cheney’s private jet to go duck hunting. The legal value of
a bribe is its value to the recipient, e.g., United States v. Gorman, 807 F.2d 1299, 1305 (6th Cir. 1986); United
States v. Williams, 705 F.2d 603 (2d Cir. 1983) (business loan to Senator), and a private jet is the ultimate upgrade.
86
Cheney v. United States District Court for the District of Columbia, 541 U.S. 913 (2004) (Scalia, J., in chambers).
87
Supra n. 1.
88
George Carlin, YouTube video at ~7:45 (undated), available at https://www.youtube.com/watch?v=hWiBt-pqp0E
(in re: internment of Japanese-Americans in World War II).
89
Melanie Hicken, Chief Justice Roberts Headlines Newhouse III Opening, The Daily Orange (Syracuse), Sept. 20,
2007.
90
Michigan v. Bryant, 562 U.S. ___, 131 S.Ct. 1143, 1176 (2011) (Scalia, J., dissenting; citation omitted).
91
When the Framers entrusted the judicial Power to our courts, they had something specific in mind. From time
immemorial, it had been understood that the office of the judge was jus dicere—the power to declare the law, as
opposed to writing it. Francis Bacon, Essays LVI (Of Judicature) (1620). Lord Coke maintained that "[i]t is the
function of a judge not to make, but to declare the law, according to the golden mete-wand of the law and not by the
crooked cord of discretion." 1 E. Coke, Institutes of the Laws of England 51 (1642). Blackstone adds that a judge is
"sworn to determine, not according to his own judgments, but according to the known laws." 1 Blackstone, Commen-
taries at *69. Alexander Hamilton argued that to "avoid an arbitrary discretion in the courts, it is indispensable that
[judges] should be bound by strict rules and precedents, which serve to define and point out their duty in every
particular case before them." The Federalist No. 78, at 470. Thomas Jefferson saw the judge as “a mere machine,”
expecting that the law “be dispensed equally & impartially to every description of men.” Thomas Jefferson, Letter
(to Edmund Pendleton), Aug. 26, 1776. As in all but the most exotic cases, the “law” is established, the judge was
expected to be little more than an administrator, playing what Professor Llewellyn called “the game of matching
cases.” Karl Llewellyn, The Bramble Bush 49 (1960).

The judge’s function was viewed mostly in terms of duties: Chief Justice Marshall describes the judge’s willful
refusal to accept jurisdiction over a case he had a duty to hear as “treason to the constitution.” Cohens v. Virginia, 16
U.S. 264, 404 (1821).
92
Brutus, Essay XV (Mar. 20, 1788), reprinted in, 1 The Complete Anti-Federalist 439 (H. Storing, ed. 1981). It is
generally conceded by scholars that Judge Robert Yates wrote Anti-Federalist essays under the pseudonym “Brutus.”
93
Thomas Jefferson, Letter (to Admantios Coray), Oct. 23, 1823 at 5.
94
Sam Stein, Kagan: In Bush v. Gore, Court Was Affected By Politics and Policy, Huffington Post, May 19, 2010,
http://www.huffingtonpost.com/2010/05/19/kaganin-bush-v-gore-cour_n_581511.html (last visited Apr. 27, 2011)
(quoting the speech notes of Justice Elena Kagan).
95
Robert H. Bork, Coercing Virtue: The Worldwide Rule of Judges 13 (AEI Press, 2003).
96
Josh Blackman, Judge Posner on Judging, Birthright Citizenship, and Precedent, Nov. 6, 2015 (partial transcript of
Judge Posner’s talk at the 2015 Loyola Constitutional Law Colloquium), at
http://joshblackman.com/blog/2015/11/06/judge-posner-on-judging-birthright-citizenship-and-precedent/
97
See King v. Burwell, No. 14-114, 576 U.S. ___ (2015) (Scalia, J., dissenting) (slip op., at 23) (“SCOTUScare”).
98
The Federalist No. 78, at 440 (Alexander Hamilton).
99
As used here, this term refers to the original Constitution ratified in 1789 and the Bill of Rights, augmented by the
Civil War Amendments. The Eleventh Amendment is jurisdictional (non-resident must sue a State in its courts), and
the Twelfth changes the procedure for how we elect the President and Vice-President. Subsequent Amendments are

19
more provincial in nature, though no less important.
100
E.g., Jacobs v. United States, 290 U.S. 13 (1933) (Fifth Amendment “takings clause” was an implicit waiver of
federal sovereign immunity); Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971) (implied right of
action for Fourth Amendment violation). This line of cases has been interpreted out of existence,
101
The right to a trial by jury preserved by the Seventh Amendment is that which existed at common law at the time
the Amendment was adopted, Baltimore & Carolina Line, Inc. v. Redman, 295 U.S. 654, 657 (1935), and the signal
feature of the jury trial in 1791 was that the jury—not judges!—had lawful authority to “determine the law as well as
the fact in controversy.” Georgia v. Brailsford, 3 U.S. 1, 4 (1793) (jury instructions of Jay, C.J.). By taking ultimate
decision-making power out of the hands of judges, the Seventh Amendment preserved one of the "transcendent privi-
leges" of the Englishman: "that he cannot be affected either in his property, his liberty, or his person, but by the
unanimous consent of twelve of his neighbours and equals.” 4 Wm. Blackstone, Commentaries on the Laws of Eng-
land *379 (1765).

To the Framers’ generation, the right to a jury trial, with one’s peers deciding both the facts and law, was a sacro-
sanct privilege of citizenship: they fought a revolution to secure it; several Framers refused to sign the Constitution
because it did not adequately preserve it. Justice Rehnquist drives this point home: “The founders of our Nation
considered the right of trial by jury in civil cases an important bulwark against tyranny and corruption, a safe-
guard too precious to be left to the whim of the sovereign, or, it might be added, to that of the judiciary.” Parklane
Hosiery Co., Inc. v. Shore, 439 U.S. 322, 343, (1979) (Rehnquist, J., dissenting) (emphasis added).
102
On this point, the Framers’ intent could not have been more pellucid. The express purpose of this “Heaven-taught
institution,” Fabius, Letter to Editor, Delaware Gazette (1788), reprinted in, John Dickinson, The Letters of Fabius,
in 1788, on the Federal Constitution; and in 1797 on the Present Situation of Public Affairs 32 (1797), was “to guard
agst. corrupt Judges,” 2 Farrand, The Records of the Federal Convention of 1787 587 (1909) (statement of Elbridge
Gerry (MA)); reducing them to glorified consiglieri. As Thomas Jefferson explained, it is left “to the juries, if they
think the permanent judges are under any biass whatever in any cause, to take upon themselves to judge the law as
well as the fact. They never exercise this power but when they suspect partiality in the judges, and by the exercise of
this power they have been the firmest bulwarks of English liberty.” Thomas Jefferson, Letter (to L’Abbe Arnoux),
Jul. 19, 1789 at 2. There is no contrary authority.
103
Supra, n. 10.
104
Power to either force officials to prosecute a crime or prosecute it yourself is ubiquitous in democratic countries--
even in countries that are not exactly staunch redoubts of human rights, such as Zimbabwe. Even in Harare, a victim
of a crime has a legal right to prosecute if their Attorney-General declines:

In all cases where the Attorney-General declines to prosecute for an alleged offence, any private party, who can
show some substantial and peculiar interest in the issue of the trial arising out of some injury which he indivi-
dually has suffered by the commission of the offence, may prosecute, in any court competent to try the offence,
the person alleged to have committed it.

Criminal Procedure and Evidence Act, 2004, [Chapter 9:07], Part 13 (Zimbabwe).

The salutary purpose of such a rule, according to Justice Holmes, was to accommodate a natural desire for
revenge within the law by avoiding "the greater evil of private retribution." Oliver W. Holmes, The Common Law
41-42 (1881). Thus, even in Tanzania, the idea that the State can be trusted with the exclusive, uncontrolled fran-
chise in prosecution of crimes is inconceivable, as Professor Nreseko of the University of Botswana notes, relating
comments in an unpublished case of that nation's Court of Appeals:

We are surprised because we did not think anyone in our country could be vested with such absolute and total
powers. It would be terrible to think that any individual or group of individuals could be empowered by law to
act even mala fide. As it turned out to our great relief the exercise of the powers by the DPP under the Criminal
Procedure Act is limited by the Act. Although the powers of the DPP appear to be wide, the exercise is limited

20
 by three considerations. That wherever he exercises the wide powers he must do so only in the public interest, in
the interest of justice and in the need to prevent abuse of the legal process.

D. N. Nsereko, Prosecutorial Discretion Before National Trials and Int'l Tribunals, Int'l Soc'y for the Reform of
Criminal Law (undated), at http://www.isrcl.org/Papers/Nsereko.pdf, quoting Director of Public Prosecutions v.
Mehboob Akbar Haji & Another, Cr, App. No. 28 of 1992 (unreported).

No other country in the civilised world—and not even Zimbabwe!—thinks it is a good idea to grant the State an
exclusive franchise to decide which crimes it will prosecute, and which it will ignore, without any external control
whatever. The right exists throughout the Commonwealth, even if it is invoked only rarely. E.g., Barrymore Facing
Pool Death Case, BBC News, Jan. 16, 2006 (Great Britain); Plans For Private Prosecution Against Winnie, BBC
News, Nov. 26, 1997 (South Africa: prosecution of Winnie Mandela proposed). Malaysia allows private criminal
prosecution by the aggrieved party, Criminal Procedure Code, Act 593, Sec. 380 (Malaysia) and even citizen's
arrests. Id., Sec. 27(1). While this appears to be a relatively new development, India limits the citizen's standing to
initiate a criminal prosecution of public servants to those directly impacted by their alleged acts. Private complaint
can't be based to prosecute public servant: Court, DNAIndia.com (Press Trust India), Oct. 16, 2010, at
http://www.dnaindia.com/india/1453552/reportprivate-complaint-can-t-be-used-to-prosecutepublic-servant-court.
The procedure is unsettled in Kenya, Kenya: DPP Urges Court to Drop Private Prosecution Case, The Star (Nairobi),
Aug. 5, 2013, reprinted at http://allafrica.com/stories/201308052173.html (the right itself appears to be intact, but
the procedure is uncertain), but for the most part, Commonwealth nations tend to follow the example of Mother
England.

Pretty much every other reasonably-civilized country on the face of this earth has devised a formal mechanism for
controlling reluctant prosecutors. A brief survey of established Western democracies reveals that, in most instances,
prosecutors have little or no discretion as to whether to prosecute a crime. Italy includes an express duty to prosecute
in its constitution. Costituzione della Repubblica Italiana [Constitution] art. 112 (Italy 1947). As anyone who has
been following the news already knows, Martin Sieff, Spain Wants Torture Charges Against Bush Six Dropped, UPI,
Apr. 16, 2009, Spain trusts her citizens with wide latitude to initiate criminal proceedings. Constitución Espanola de
1978 [1978 Constitution] art. 125 (Spain). Prosecutorial discretion in most states is governed by statute and often,
quite limited. See e.g., Hans- Heinrich Jescheck, The Discretionary Powers of the Prosecuting Attorney in West
Germany, 18 Amer. J. Comp. L. 508 (1970). In the Netherlands, whereas public prosecutors have sole prosecuting
authority and statutory discretion as to whether to forego prosecution in the "public interest," an aggrieved victim can
take prosecutors to court to force prosecution. Openbaar Ministerie, The Principle of Expediency in the Netherlands
(Power Point presentation), Oct. 27, 2006, at http://eulec.org/Downloads/intstrafrecht/expediency-china.pps. The
Phillippines has a separate court—the Sandiganbayan—quite literally dedicated to prosecuting public corruption,
where private prosecutors may intervene in specified circumstances. See, Magno v. People, G.R. No. 171542 (S.C.
Apr. 6, 2011) (discussing limits on intervention). And unlike the United States, our former protectorate still has the
writ of certiorari. Id.

In our own hemisphere, most countries have robust private prosecution systems, see generally, Kathryn Sikkink,
The Justice Cascade: How Human Rights Prosecutions Are Changing World Politics (Norton, 2001), and of course,
our nice neighbours to the North are light-years ahead of us on the human rights front. As Canada’s Department of
Justice observes, the right (and duty) to initiate a private criminal prosecution is "a valuable constitutional safeguard
against inertia or partiality on the part of authority," Gouriet v. Union of Post Ofc. Workers [1978] A.C. 435, 477
(H.L.) (Canada)—flourishing a pedigree as old as the common law itself:

A private citizen's right to initiate and conduct a private prosecution originates in the early common law. From
the early Middle Ages to the 17th century, private prosecutions were the main way to enforce the criminal law.
Indeed, private citizens were responsible for preserving the peace and maintaining the law:

[U]nder the English common law, crimes were regarded originally as being committed not against the state
but against a particular person or family. It followed that the victim or some relative would initiate and
conduct the prosecution against the offender …

Canada Dept. of Justice, The Federal Prosecution Service Deskbook, Part IV, ch. 26 (undated; copy on file).

21
 What we can say for certain is that the constitutional charge to the President that “he shall take Care that the Laws
be faithfully executed,” U.S. Const. art. II, § 3, did not extinguish the right to private criminal prosecution. Both the
New York, N.Y. Const. of 1777 art. XIX (1822), and Pennsylvania constitutions, Pa. Const. of 1776, § 20 (1820),
had virtually identical clauses, and were not interpreted as banning it; in Philadelphia, it had devolved into a sort of
“blood sport.” Allen Steinberg, "The Spirit of Litigation:" Private Prosecution and Criminal Justice in Nineteenth
Century Philadelphia, 20 J. Social History 231 (1986). Nor can vestment of the executive power in the President,
U.S. Const. art. II, § 1, for the same reason.

In 1789, Private criminal prosecution was a practical necessity. The world’s first bona fide police force would
form decades into the future, Charles P. Nemeth, Private Security and the Law 6 (3d ed. 2004), and essentially by
default, the responsibility of enforcing public order fell upon the populace. See e.g., People ex rel. Case v. Collins,
19 Wend. 56, 65 (N.Y. Sup. Ct. 1837) (mandamus); People ex rel. Blacksmith v. Tracy, 1 Denio. 617, 618 (N.Y.
Sup. Ct. 1845) (general rule unless statute provides otherwise). The federal government relied on qui tam actions for
the enforcement of the law, Steven L. Winter, The Metaphor of Standing and the Problem of Self-Governance, 40
Stan. L. Rev. 1371, 1406-08 (Jul. 1988), and for centuries, “it was not only the privilege but the duty of the private
citizen to preserve the King's Peace and bring offenders to justice.” Canada Dept. of Justice, The Federal Prosecu-
tion Service Deskbook, Part IV, ch. 26 (copy on file).

Even as late as 1875, there was never any doubt that in America, a victim of a crime had the clear legal right to
prosecute it. See, Winter, Metaphor of Standing at 1403 (however, a minority of states required the relator to allege a
private right). In that year, the Supreme Court found "a decided preponderance of American authority in favor of the
doctrine that private persons may move for a mandamus to enforce a public duty, not due to the government as such,
without the intervention of the government law officer." Union Pacific R. Co. v. Hall, 91 U.S. 343, 355 (1875). The
Court drew a "reasonable implication" that by virtue of its silence, Congress "did not contemplate the intervention of
the Attorney General [to compel compliance with the law] in all cases." Id. at 356.

If the Framers ever intended to deprive citizens of the common law right to initiate a criminal prosecution—again,
existing in some form in all advanced democratic societies—one is left to search in vain for evidence of that intent.
And as the prosecution of crime was not seen as an executive function in 1791 but rather, one of the well-established
prerogatives of the people, it is unlikely that they would have even perceived the threat that it could be divested by
congressional fiat. The question has never been legally resolved, see, Young v. United States ex rel. Vuitton et Fils
S.A., 481 U.S. 787, 816 and n. 2 (1987) (Scalia, J., concurring in part), but it is hard to imagine that the “inestimable
right … of invoking the penalties of the law upon those who criminally or feloniously attack our persons or our prop-
erty,” Blyew v. United States, 80 U.S. 581, 598 (1872) (Bradley, J., dissenting), would be willingly yielded by an in-
formed populace, or identify the constitutional mechanism by which it was divested.
105
See e.g., Benjamin Weiser, Trial by Jury, a Hallowed American Right, Is Vanishing, N.Y. Times, Aug. 7, 2016.
Many civil cases are extinguished at the pleading level via summary judgment, a procedure which is itself unconsti-
tutional on its face. Suja A. Thomas, Why Summary Judgment Is Unconstitutional, 93 U.Va. L. Rev. 139 (2007).
106
This essential right was extinguished by Congress in The Judiciary Act of 1925, 43 Stat. 936 (1925) (“The
Judges’ Bill”), currently codified at 28 U.S.C. § 1254(a)(1) and § 1257(a).
107
The Framers believed that "[t]o avoid an arbitrary discretion in our courts, it is indispensable that [judges]
should be bound by strict rules and precedents, which serve to define and point out their duty in every particular case
before them.” The Federalist No. 78 (Alexander Hamilton). The rule of precedent—known as stare decisis—thus
expressed not only acts as an assurance that individual litigants were treated fairly, but provides individuals clear
guidance as to what the law is, so they can “plan their affairs with assurance against untoward surprise.” Moragne v.
States Marine Lines, 398 U.S. 375, 403 (1970). This is an absolute necessity in a functioning republic created to
protect individual liberties, as liberty “finds no refuge in a jurisprudence of doubt.” Planned Parenthood of S.E. Pa.
v. Casey, 505 U.S. 833, 844 (1992). As Justice (Professor) Story wrote, “[a] more alarming doctrine could not be
promulgated by any American court, than that it was at liberty to disregard all former rules and decisions, and to
decide for itself [what the law is], without reference to the settled course of antecedent principles.” Anastasoff v.
United States, 223 F.3d 898, 904 (8th Cir. 2000), vacated as moot, 234 F.3d 1054 (8th Cir. 2000). (quoting Story,

22
from his Commentaries).

In theory, “[c]aselaw on point is the law,” Hart v. Massanari, 266 F.3d 1155, 1170 (9th Cir. 2001), as it is the Su-
preme Court’s "prerogative alone to overrule one of its precedents." State Oil Co. v. Khan, 522 U. S. 3, 20 (1997);
see e.g., James B. Beam Distilling Co. v. Georgia, 501 U.S. 529, 544, 549 (1991) (Scalia, J., concurring; citation
omitted). In the real world, despite an apparent constitutional mandate for doing so, the Supreme Court doesn’t do
error-correction. Sup. Ct. R. 10.
108
Robert H. Bork, Our Judicial Oligarchy, 67 First Things 21, 24 (Nov. 1996) (emphasis added).
109
Obergefell v. Hodges, No. 14-556, 576 U.S. __ (2015) (Scalia, dissenting; slip op. at 2).
110
“I’ve been working for free, which probably means I’m too stupid to be on the Supreme Court.” 60 Minutes: Jus-
tice Scalia on the Record, Both Online and Off (CBS television broadcast Apr. 27, 2008) (transcript available at
http://perma.cc/A64CQNBB).
111
Obergefell, supra (Scalia, J., dissenting) (slip op., at 2).
112
Abraham Lincoln, Speech (on the Kansas-Nebraska Act, Springfield, IL), Oct. 16, 1854.
113
Obergefell, supra ., Roberts, C.J., dissenting) (slip op., at 2).
114
Id., Roberts, C.J., dissenting) (slip op., at 11).
115
Planned Parenthood of S.E. Pa. v. Casey, 505 U.S. 833, 981 (1992) (Scalia, J., dissenting).
116
United States v. Callender, 25 F.Cas. 239, 257 (D.Va. 1800) (Chase, J., riding circuit).
117
Cf., Bradley v. Fisher, 80 U.S. 335 (1871) (a judge must possess jurisdiction over a dispute to claim immunity);
Stump v. Sparkman, 435 U.S. 349 (1978) (immunity is virtually unlimited); see also, e.g., Pierson v. Ray, 386 U.S.
547 (1967), (holding that "any person" means “any person but us judges”).
118
Imbler v. Pachtman, 424 U.S. 409 (1976).
119
E.g., Alden v. Maine, 527 U.S. 706 (1999).
120
United States v. Bormes, 133 S.Ct. 12, 16 (2012).
121
Suetonius, The Lives of the Twelve Caesars 280 (trans. A. Thomson; Bell, 1893), Ch. 4, § LXI.
122
While the list borders on the infinite—the entire United States Reports is no match for a headstrong judge—these
are the cases one relies on at his or her peril:

Marbury v. Madison, 5 U.S. at 163 (right of every individual to claim protection of the laws whenever he
receives an injury); accord, Poindexter v. Greenhow, 114 U.S. 270, 303 (1884) ("To take away all remedy
for the enforcement of a right is to take away the right itself.").

United States v. Peters, 9 U.S. 121, 126 (1795); Cohens v. Virginia, 16 U.S. 264, 404 (1821); see Ex parte
Fitzbonne (U.S. unreported 1800) (court has a duty to exercise the authority it has),

Moragne v. States Marine Lines, 398 U.S. 375, 403 (1970) (right to rely on this Court’s decisions as
authoritative statements of the law).

Tumey v. Ohio, 273 U.S. 510 (1927), In re Murchison, 349 U.S. 133 (1955), Johnson v. Mississippi, 403
U.S. 212, 215-216 (1971) (per curiam), Ward v. Monroeville, 409 U.S. 57, 58-62 (1972), Aetna Life Ins.
Co. v. Lavoie, supra, Bracy v. Gramley, 520 U. S. 899, 905 (1997), Caperton v. A.T. Massey Coal Co., No.
08-22, 556 U.S. ___ (2009) (scope of the due process right to a fair and independent tribunal),

Carey v. Piphus, 435 U.S. 247 (1978) (violation of due process a stand-alone tort),

District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 482-83 (1983) (citizen’s right to

23
 challenge constitutionality of statute uniquely and directly affecting him),

Exxon-Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280 (2005); Skinner v. Switzer, No. 09-9000, 562
U.S. ___ (2011) (limits on Rooker-Feldman doctrine),

Vallely v. Northern Fire & Marine Ins. Co., 254 U.S. 348 (1920) (void judgment not entitled to full faith
and credit),

Bradley v. Fisher, 80 U.S. 335 (1871) (a judge must possess jurisdiction over a dispute to claim immunity);
Cleavinger v. Saxner, 474 U.S. 193 (1985); Forrester v. White, 484 U.S. 219 (1988) (limits on immunity).

United States v. Bajakajian, 524 U.S. 321, 338 (1998) (right to “equality before the law”),

Steel Co. v. Citizens for a Better Env't, 523 U.S. 83 (1998) (federal court may not take hypothetical
jurisdiction over a matter),

United States v. Lee, 106 U.S. 196, 220 (1882) (government agents are servants of the law, and accountable
thereunder),

United States v. American Trucking Assns., Inc., 310 U.S. 534, 542-43 (1940); Haggar Co. v. Helvering,
308 U.S. 389, 394 (1940) (courts must eschew irrational and unjust results unless there is no alternative),

James B. Beam Distilling Co. v. Georgia, 501 U.S. 529, 544 (1991), Planned Parenthood of S.E. Pa. v.
Casey, 505 U.S. 833, 854-55 (1992) (precedent on precedent),

Perry v. Sindermann, 408 U.S. 583, 597 (1972) (government may not deny any benefit on a basis that
infringes upon a constitutionally protected interest),

Schware v. Board of Bar Examiners of N.M., 353 U.S. 232, 238-39 (1957) (bar applicants’ entitlement to
due process), see also, Willner v. Cmte. on Character, 373 U.S. 96 (1963); Barry v. Barchi, 433 U.S. 455
(1979) (general rights of applicants for professional licensure),

Lynch v. Household Finance Corp., 405 U.S. 538, 552 (1972) (liberty and property interests indis-
tinguishable for purposes of Fifth Amendment analysis),

Boyd v. United States, 116 U.S. 616, 630 (1886); Schlagenhauf v. Holder, 379 U.S. 104 (1964); Whalen v.
Roe, 429 U.S. 589, 600 (1977) (re: contours of the right of privacy Justice Scalia seems to have
misplaced),

Morrissey v. Brewer, 408 U.S. 471, 481 (1972); Matthews v. Eldridge, 424 U.S. 319 (1976) (Fifth
Amendment due process rights in general),

United States v. Wilson, 32 U.S. 150 (1833) (any term of art borrowed from English law is defined with
reference to that law),

Chambers v. Baltimore & Ohio R. Co., 207 U.S. 142, 148 (1907) (citizen’s absolute right of access to the
courts), cf., Scott v. Sandford, 60 U.S. 393 (1857); Blyew v. United States, 80 U.S. 581, 598-99 (1871)
(Bradley, J., dissenting).

United States v. Will, supra (proper constitutional bounds of the Rule of Necessity),

Head Money Cases, 112 U.S. 580, 598-99 (1884); Ware v. Hylton, 3 U.S. 199 (1796) (treaty is a law of the
land, enforceable by an aggrieved citizen),

Murray v. Schooner Charming Betsy, 6 U.S. 64, 118 (1804) (domestic law is to be interpreted in accord
with treaty obligations, if at all possible); United States v. Alvarez-Machain, 504 U.S. 655, 665 (1992)
(rules of treaty interpretation),

Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 689-90 (1949) ("where the officer's powers
are limited by statute, his actions beyond those limitations are considered individual and not sovereign
actions"),

Claflin v. Houseman, 93 U.S. 130 (1876), Howlett v. Rose, 496 U.S. 356 (1990) (state court of general
jurisdiction has a duty to decide federal claims properly brought before it),

Cooper v. Aaron, 358 U.S. 1, 18 (1958) (no official "can war against the Constitution without violating his
undertaking to support it").

Whitney v. Robertson, 124 U.S. 190, 195 (1888) (“last-in-time” rule),

Reid v. Covert, 354 U.S. 1 (1957) (Constitution is paramount law, which even judges must obey),

Lake County v. Rollins, 130 U.S. 662, 670 (1889); Connecticut Nat’l Bank v. Germain, 503 U.S. 249
(1992) (collecting cases); Heiner v. Donnan, 285 U.S. 312, 331 (1932); Anderson v. Wilson, 289 U.S. 20,
27 (1933); Rubin v. United States, 449 U.S. 424, 430 (1981) (plain meaning rule; rarity of permissible
exceptions),

Ex parte Young, 209 U. S. 123 (1908), Younger v. Harris, 401 U.S. 37, 45 (1971) (federal courts are

24
 permitted to intervene in state court proceedings where irreparable injury can be shown),

Kendall v. United States, 37 U.S. 524, 624 (1838); DeLima v. Bidwell, 182 U.S. 1, 176-77 (1901); Bell v.
Hood, 327 U.S. 678, 684 (1946), State Farm Fire & Cas. Co. v. Tashire, 386 U.S. 523 (1967); Bivens v.
Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971), Brown v. Board of Education of Topeka, 347
U.S. 483 (1954) (where a constitutional injury is suffered, remedial provisions are interpreted expansively
and as necessary, the courts’ remedial authority is implied [see Marbury v. Madison, supra]).
123
United States v. Bajakajian, 524 U.S. 321, 338 (1998).
124
Carey v. Piphus, 435 U.S. 247 (1978).
125
Tumey v. Ohio, 273 U.S. 510, 523 (1927).
126
Moragne v. States Marine Lines, 398 U.S. 375, 403 (1970).
127
Cleveland Board of Education v. Loudermill, 470 U.S. 532, 541 (1985) (internal quotation omitted).
128
James Madison, A Memorial and Remonstrance (address to the General Assembly of the Commonwealth Of
Virginia), Jun. 20, 1785), as reprinted in 2 J. Madison, The Writings of James Madison (1783-1787) at 122-23
(emphasis added).

25