Tag Archives: courts

Why You Can’t Get Your Day in Court (it’s a New America)

Summary: America’s courts have decayed to a feudal-like system of High, Middle, and Low justice for the rich, middle class, and poor. Federal Judge Jed Radoff discusses this how courts work in this New America. It an example of the Republic’s decreasingly ability to serve us. During the next four years the Republican Party will work to make US courts work even less for us and even more for the 1%.

 

Why You Won’t Get Your Day in Court

By Jed S. Rakoff, District Judge
for the Southern District of NY.

New York Review of Books,
24 November 2016.
Posted with the judge’s generous permission.

 

Over the past few decades, ordinary US citizens have increasingly been denied effective access to their courts. There are many reasons for this. One is the ever greater cost of hiring a lawyer. A second factor is the increased expense, apart from legal fees, that a litigant must pay to pursue a lawsuit to conclusion. A third factor is increased unwillingness of lawyers to take a case on a contingent-fee basis when the anticipated monetary award is modest. A fourth factor is the decline of unions and other institutions that provide their members with free legal representation. A fifth factor is the imposition of mandatory arbitration. A sixth factor is judicial hostility to class action suits. A seventh factor is the increasing diversion of legal disputes to regulatory agencies. An eighth factor, in criminal cases, is the vastly increased risk of a heavy penalty in going to trial.

For these and other reasons, many Americans with ordinary legal disputes never get the day in court that they imagined they were guaranteed by the law. A further result is that most legal disputes are rarely decided by judges, and almost never by juries. And still another result is that the function of the judiciary as a check on the power of the executive and legislative branches and as an independent forum for the resolution of legal disputes has substantially diminished — with the all-too-willing acquiescence of the judiciary itself.

Some of this may seem surprising to people accustomed to hearing about overburdened courts with overcrowded dockets. These very real burdens partly reflect the decades-old refusal of many legislatures to provide funds for new courts and new judges at a rate remotely comparable to the increase in population and the corresponding increase in cases. But aside from these facts, a closer look at changes in the courts’ dockets reveals some disturbing trends.

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The Left will rue the day they cheered an activist Court

Summary:  The reactions to the Court’s ruling on Obamacare and same sex marriage divide on predictable partisan grounds, as Americans seek what they want. We care little about Constitutional procedure and less about the work of making the machinery work as the Founders intended. It’s the thinking typical of political regimes’ last days, when belief has gone and people just follow the forms.  {We’re back to one post per day, as I consider winding down this project.}

Justice lying down

The Supreme Court has legalized same-sex marriages. David Fontana at Slate gives some of the typical liberal cheering for the Court’s decision on same-sex marriages: “The Justices’ Justice” — “For years we feared the consequences of pushing social progress through the courts. Obergefell v. Hodges will prove we shouldn’t.”  I suspect he’s cheering prematurely.

For a clearer example of thinking on the Left see Matthew Yglesias’ reaction, exultant and quite daft (red emphasis added)…

What’s more, it’s a huge analytic mistake to assume that striking down some law is an anti-majoritarian action. The way the United States government works is that change is very hard. Given the current state of gridlock in Washington, it’s pretty clear that neither a gay marriage legalization bill nor a gay marriage illegalization bill could pass. On marriage equality, like on virtually every other issue, the status quo is simply likely to prevail. Into the breach steps the Supreme Court — in this case, on the side of the majority according to polls.

All in all, I think the American system of checks-and-balances has a lot of flaws. But unelected judges invalidating unjust laws that a majority of the public wants invalidated is basically the system working at its best.

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A Tale of New America: a judge burns the Constitution

Summary: Today we have another Tale of New America, as the government exempts from legal challenge the shadowy neocon group United Against Nuclear Iran. The tale is told here not as information (clickbait), but to spark your anger and action at what’s happening to the Republic and what we have become.   {1st of 2 posts today.}

“United Against Nuclear Iran”

Let’s make it a dawn, not a sunset.

For a decade I and many others have documented the decline of the Republic and its replacement by a plutocracy. We’re now far along in this, as the 1% begins the “pursuit” phase (the endgame) in which they exploit their victory to crush their foes (preventing subsequent conflict), and begin the post-bellum restructuring of law and society to accommodate their values and appetites. The changes to date were on the gentle downward slope of an “S Curve”. Now we enter the steep section as the 1% makes large obvious changes, without fear of effective opposition. This is our daily news.

The police become both militarized and bolder in their brutality (as in yesterday’s vignette, and the other posts about police brutality). The government becomes more open about their mass domestic surveillance; Obama boasts about ordering assassination of America citizens. Public excitement about these things produces no substantial change, just a delay in their advance.

Today we have another outrageous tale, as the government displays its power over the now-impotent institutions created by the Constitution. Accounts of these provide clickbait for the news media, excitement for the outer party (We’re informed!), and boost the reputation of the Deep State. Win-win-win.

So let’s turn to Glen Greenwald at The Intercept for today’s sad story: “Court Accepts DOJ’s ‘State Secrets’ Claim to Protect Shadowy Neocons: a New Low” —

A truly stunning debasement of the U.S. justice system just occurred through the joint efforts of the Obama Justice Department and a meek and frightened Obama-appointed federal judge, Edgardo Ramos, all in order to protect an extremist neocon front group from scrutiny and accountability. The details are crucial for understanding the magnitude of the abuse here.

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Police grow more powerful; the Republic slides another step into darkness. Can cellphone cameras save us?

Summary: Our system is changing; the Republic is dying. Events in Ferguson illustrate some aspects of this the police’s militarization, alienation from the community, and increased use of force. Today we look at the last component of this cycle — their immunity from consequences. It’s not “just happening”. Day by day our elites change the system to better suit their needs; our passivity and apathy allow it to happen. We can still force reform; that might not always be true.

Lady Justice

Becoming an illegal alien

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A darkness falls over the Republic, like a shroud. It will deepen so long as we read stories like these below as entertainment — an opportunity for faux-outrage and righteousness. Only anger and resolution can save us, while the clock runs against us.

How the Supreme Court Protects Bad Cops“, Erwin Chemerinskyaug, op-ed in the New York Times, 26 August 2014 — Excerpt:

In recent years, the court has made it very difficult, and often impossible, to hold police officers and the governments that employ them accountable for civil rights violations. This undermines the ability to deter illegal police behavior and leaves victims without compensation. When the police kill or injure innocent people, the victims rarely have recourse.

The most recent court ruling that favored the police was Plumhoff v. Rickard, decided on May 27, which found that even egregious police conduct is not “excessive force” in violation of the Constitution. Police officers in West Memphis, Ark., pulled over a white Honda Accord because the car had only one operating headlight. Rather than comply with an officer’s request to get out of the car, the driver made the unfortunate decision to speed away. The police chased the car for more than five minutes, reaching speeds of over 100 miles per hour. Eventually, officers fired 15 shots into the car, killing both the driver and a passenger.

The Supreme Court reversed the decision of the Court of Appeals for the Sixth Circuit and ruled unanimously in favor of the police. … This is deeply disturbing. The Supreme Court now has said that whenever there is a high-speed chase that could injure others — and that would seem to be true of virtually all high-speed chases — the police can shoot at the vehicle and keep shooting until the chase ends. Obvious alternatives could include shooting out the car’s tires, or even taking the license plate number and tracking the driver down later.

The court has also weakened accountability by ruling that a local government can be held liable only if it is proved that the city’s or county’s own policy violated the Constitution. In almost every other area of law, an employer can be held liable if its employees, in the scope of their duties, injure others, even negligently. This encourages employers to control the conduct of their employees and ensures that those injured will be compensated.

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The last prosecution from the Occupy movement: guilty! Reformers beware – suppression works.

Summary: As the last prosecution concludes from the Occupy Wall Street movement, now we can draw up lessons learned from OWS. Valuable lessons that must be learned to give a reform movement any chance of success. But first we look at the instructive case of Cecily McMillan, newly found guilty of assaulting a police officer as a protest was crushed (a show trial to discourage other protestors). Tomorrow we discuss lessons.

Army attack camp of the Bonus Marchers

Attack on the Bonus Army, July 1932

Contents

  1. About the incident
  2. Casual police brutality
  3. Justice for Cecily
  4. Conclusions
  5. For More Information

(1)  About the incident

It’s a pattern in America. Banks almost break America with their reckless and fraudulent actions. Only one small fry prosecuted. Massive police violence suppressing the Occupy movements; almost only the protestors prosecuted. It’s the two tiered justice system.

(a) The Outrageous Trial of Cecily McMillan“, Michelle Goldberg, The Nation, 14 April 2014

Two years ago, a young activist named Cecily McMillan attended a protest at Zuccotti Park marking the six-month anniversary of Occupy Wall Street. When police moved in to clear the demonstrators, a cop roughly grabbed her breast — photos show an ugly bruise — and she ended up being injured so badly that she had a seizure and ended up in the hospital. In a just world, she would be getting restitution from the City. Instead, in a grotesque act of prosecutorial overreach, she’s currently on trial for assault and facing up to seven years in prison.

According to prosecutors, McMillan, now 25, intentionally attacked her arresting officer, Grantley Bovel, by elbowing him in the face, and was then hurt when he tried to subdue her. She says that she instinctively struck out when she felt his hand on her breast, not knowing that he was a cop, and was then further assaulted.

Her story is more convincing for a number of reasons. McMillan, a veteran of the anti–Scott Walker protests in Wisconsin, was a dedicated pacifist; in Dissent, her masters thesis adviser Maurice Isserman writes about the “many and long discussions Cecily and I have had about nonviolence.” Her injuries, which you can see in this Democracy Now! piece, are indisputable, particularly the hand-shaped bruise on her right breast.

(b) NYPD officer embroiled in assault trial sued by another Occupy campaigner“, The Guardian, 4 April 2014

A New York police officer whose allegation of assault against an Occupy Wall Street activist could send her to prison for seven years is being sued by another Occupy campaigner, who alleges that the officer injured him on the same day. … {he} has faced several previous allegations of wrongdoing …

(c)  A charmingly naive but vivid account of the story: “The Silencing Of Cecily McMillan“, Kathryn Funkhouser, The Toast, 14 April 2014 — Also includes the videos of the incident.

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Destroying campaign finance laws, another win for the 1%. Another step to a New America.

Summary: It’s fun to read the shocked, shocked reactions to the Supreme Court’s latest gutting of the campaign finance laws. The 1% have been gathering wealth, income, and political power for 40 years. What did the Left expect the 1% to once they owned the high ground n every aspect of American society? Like Bruce Wayne, dedicate themselves to building a better America for its people — especially the poor and working poor?

Scalia and Roberts

Please with themselves: Supreme Court Justices Antonin Scalia & John Roberts. Reuters/Brendan McDermid; AP/Larry Downing

The 1% are regular people, ambitious and greedy, so of course they’re wielding their power to consolidate their position, to break down the barriers hemming them in, and shifting the tax burden to others. And the sun will rise tomorrow.

They will continue to gain power. The process has passed the point when any easy reforms will slow, let alone stop, the process. Reversing it, restoring the Second Republic (or building a Third), is a goal beyond my sight today.

Doing the least of these things will require us to change ourselves, to again become citizens (not subjects).

Doing the greatest of these will require effort and risk beyond anything we’ve done in generations. Perhaps since the Civil War.

Below are reports about the latest step the Supreme Court has taken to boost the power of the 1%, which for most of American history has been its primary role. These stories, like most political reporting, are read by Americans as entertainment. Opportunities to cheer our side and boo the bad guys.  How sad. If these do not incite you to action, then why read them? Find a more productive or fulfilling way to spend your time — for they have no useful information content except to politicians, political operatives, lobbyists, and reformers.

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(a) Roberts Court: Government Must Be By, and For, the Wealthy“, Scott Lemieux (Prof History & Political Science, College of St Rose), The American Prospect, 2 April 2014 — Excerpt:

Everyone who thinks that the rich don’t have enough influence on American politics can rest easier.

In an expected but still depressing decision today, the Supreme Court struck down aggregate limits on how much an individual can donate to politicians and political parties within a 2-year window as a violation of the First Amendment. Having already made it impossible for Congress to place significant restrictions on campaign spending, a bare majority of the Court is now chipping away at the ability of Congress to place limits on donations as well.

… To the Roberts Court, money should talk as loudly as possible while ordinary voters can take a walk.

(b) The Supreme Court’s Ideology: More Money, Less Voting“, Ari Berman, The Nation, 2 April 2014

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America swings to the Right. The Left loses. How has the Left dug itself into this hole?

Summary: Today we look at one of the defining political trends of our time — America’s movement to the Right. Like most political evolutions in our history, it’s bipartisan. Previous posts have examined how the Right has won. Today and tomorrow we look at how the Left has accomplished this (it didn’t just happen), and how they have responded to this long series of defeats. These are just sketches about vast and complex trends. At the end see links to other posts in this series.

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America has been moving to the Right since roughly 1980. Not in all things. The 1% cares about power and money; as a class it does not care who marries who. The US health care system’s decay, and the Right’s indifference to reform, allowed the Left to pass ObamaCare.

But the overall trend has been to the Right. A few examples…

  1. Defunding public colleges.
  2. Cutting taxes on the rich and businesses, shifting the tax burden down (as the GOP is doing in the States today).
  3. Reducing the safety net (e.g., . Reducing the minimum wage (in real terms), Clinton “ending welfare as we know it” in 1996).
  4. Crushing private sector unions.
  5. Deregulation of corporations, especially banks.
  6. Eroding away the 1970s reforms on the military and intelligence agencies.

We can debate the wisdom of these changes (I’m mostly against them all), but let’s leave that debate for another day. How has the Left responded? Today we’ll see how the Left has worked to gain public support — and failed. Tomorrow we’ll examine how they addressed the equally important (in an operational sense) task of maintaining internal cohesion during their long defeat.

The Left fights back

The Left responded its efforts on use of two tactics.

(a)  Legal leverage

The Left used its strength in the Courts to effect public policy measures they could not do through democratic means. Most notably, expansion of environmental protections, plus expanded rights to abortion and same-sex marriage. Although this produced some wins, the long-term effect has been catastrophic for the Left.

The focus on legalistic tactics led to an atrophy of grass-roots organizing, and a loss of legitimacy for the agenda. Legitimacy in the political sense, people’s acceptance of governmental authority. From bussing to abortion to closing logging in the NW to save the spotted owl, court-driven policy measures produce powerful backlashes unless supported with deep measures to gain public support — which step the Left has often skipped. An increasing fraction of the public believes the Left uses anti-democratic (even authoritarian) means to change public policy.

Now the real weakness of this strategy appears, as the increased strength of the Right results in more conservative judges at all levels. Judicial activism works just as well for the Right as the Left. Indeed for most of American history the Courts have been a conservative, even reactionary force. We might return to this old normal.

(b)  Gaining strength by sounding alarms

 

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