Equal Justice Under Law?

The maxim that "Absolute power corrupts absolutely" has found a new expression in the nearly absolute discretion that U.S. Supreme Court has in deciding which cases it will hear and it's time for Congress to intervene and uphold the integrity of federal law. This has subsequently been eroded, as one of the unintended consequences, of this unfettered discretion given to Court during the Reagan presidency.

There was a time when the U.S. Supreme Court would hear over 200 cases a year and during the 1980's the Court averaged 160 cases a year, but that has fallen to fewer than 80 cases a year for a decade. That is an average of less than one opinion per month per judge during the nine-month term of the court.

What is truly troubling about this laissez faire approach to the rule of law is that the U.S. Supreme Court does not protect its own precedents and permits directly contradictory applications of federal law to exist in the States within the different U.S. Circuit Courts of Appeals, meaning federal rights mean different things in California than they mean in Missouri, and this disunity is harmful to our constitutional system and encourages certain circuit courts of appeal to go rogue and undermine the legislative determinations made by Congress by subverting federal law and ignoring U.S. Supreme Court precedent since they are so rarely subject to review by the high court.

The Eighth Circuit of U.S. Court Appeals is one such rogue circuit and its application of federal law is often contrary to how other Circuits in other parts of the country apply federal law and the on-point precedents of the U.S. Supreme Court. One such recent (10/07/2011) case where the U.S. Supreme Court denied certiorari was Coates v. Powell, for which I was Ms. Coates' lawyer. The Eighth Circuit's agenda has been to undermine the enforcement of federal civil rights law by ignoring the funding scheme enacted by Congress and approved by the U.S. Supreme Court by twisting a 2001 U.S. Supreme Court case, Buckhannon, dealing with a very limited type catalyst theory claims and twisting that result to overrule other U.S. Supreme Court cases that the Supreme Court did not overrule so as to de-fund the enforcement of civil rights laws, thereby creating a three-way split within the federal circuit courts of appeals on civil rights enforcement. In 2007, the U.S. Supreme Court in Sole v. Wyner harmonized Buckhannon and explained to the 8th & other Circuits that their application of Buckhannon was in error and restated the law for when an award of civil rights attorneys' fees was appropriate. In the 2010 Coates v. Powell case the 8th Circuit ignored the Sole holding and continued its erroneous application of Buckhannon.

The Coates case also contained constitutional challenge to federal "Senior" or semi-retired judges. Chief Justice Roberts in his 2010 end of the year report on the federal judiciary said, "We would be in dire straits without their service," noting the critical function these judge's play in an over stretched federal judiciary. The challenge is that under the statute enacted by Congress, when these federal judges accept this "Senior" status the lose their Article III protections required to be a federal judge. This argument was derived from a Cornell Law Review article "Are Senior Judges Unconstitutional?" co-written by David Stras, a former law clerk to Justice Clarence Thomas and law professor and now a Justice of the Minnesota Supreme Court, and law professor Ryan Scott. According to the Federal Judicial Center, "Senior" judges are responsible for 21.9% of the federal appellate caseload. The 8th Circuit and the U.S. Supreme Court have repeatedly refused to answer the constitutional challenge to use of "Senior" judges leaving the legitimacy of the continued operation of the federal court system in question.

Congress should re-impose mandatory case review by the U.S. Supreme Court when two or more of the federal circuit courts of appeals have contradictory applications on issues of federal law or where the Circuit Court of Appeals has de facto overruled an on-point U.S. Supreme Court precedent. The words "Equal Justice Under Law" adorn the U.S. Supreme Court building and all too often in recent years the U.S. Supreme Court has permitted conflicts within the circuits to go unresolved permitting federal rights to differ depending upon which Circuit Court of Appeal covered your state, thus undermining this maxim of law for the American people.