Apply Rule of Law with Real-Life Experience

By Joel D. Joseph

(An open letter to Sen. Patrick Leahy, D-Vt., Judiciary Committee chair.)

Dear Chairman Leahy,

I recently heard you on broadcast news pontificating that judges must apply the “Rule of Law,” and that judges are bound to apply it. I must tell you, Senator, that the Rule of Law is a myth and that judges distort the “Rule of Law” to fit their personal viewpoints. To quote Charles Dickens, “the law is an ass.”

To get to the point, Chairman, the rules that many white male judges create (note: I am a white male attorney) are clearly wrong. Experience, as Mr. Dickens stated, is what can make the law based on reality and fairness.

A Few Examples where the Rule of Law is Clearly Wrong

As the author of Black Mondays: Worst Decisions of the Supreme Court, I have documented two dozen examples of Supreme Court blunders concerning the Rule of Law. Justice Thurgood Marshall, who wrote the foreword to this book, agreed with my assessments nearly all of the time (we did disagree on one case). From history, you are aware that the Rule of Law used to be Plessy v. Ferguson that “separate but equal” was constitutional. You are also aware that under the Rule of Law, Dred Scott could not challenge the constitutionality of his slavery because he was an African American.

More recently you know that the Supreme Court reinvented the Rule of Law in Bush v. Gore and installed George W. Bush as commander in chief.

The US Supreme Court recently ducked the issue of whether the North American Free Trade Agreement was a treaty. Courts now are often claiming that cases present “political questions” to avoid deciding a case. The New York Times noted that Chinese courts similarly avoid deciding important cases by finding that the cases raise “political questions.”

The Eleventh Circuit ruled that NAFTA was a treaty which posed a political question thus not suitable for the courts to answer. That ruling is clearly erroneous since it is the duty of the court to rule on what the law is (Marbury v. Madison, 5 US 137, 1803). In that landmark case, Chief Justice Marshall ruled, “It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.”

The Lanham Act requires that the true country of origin of goods be disclosed concerning imported products 15 USC §1125(a). This law also provides that any person may file suit to challenge a product’s improper labeling of the country of origin. Nevertheless, the courts have made up their own rules and have ignored the precise language of this federal law.

The Phillips Crab Company produces crab cakes made with imported crabmeat, but mislabels these as “Maryland crab cakes.” Under the Lanham Act, The Made in the USA Foundation sued Phillips, representing the consumers. Made in the USA Foundation v. Phillips Foods Inc. 365 F.3d 278 (4th Cir., 2004). In that case, the Fourth Circuit ruled that the law didn’t mean what it said and ruled that only a corporate competitor (not individuals) had the right to sue. That court’s ruling in favor of corporations was made even though corporations have no express rights under the Constitution, and certainly should not have more rights than individuals.

The federal courts have also corrupted the express meaning of the Eleventh Amendment to the Constitution. This Amendment provides that citizens of one state cannot sue another state in federal court. The courts have misinterpreted the Eleventh Amendment whereby prohibiting citizens from suing their own states in federal court. Once again the courts are saying that the law is not what the constitution says it is.

The Law is An Ass

The phrase “The law is an ass” was written by Charles Dickens in Oliver Twist. In this classic novel, Dickens’ character Mr. Bumble is informed that “the law supposes that your wife acts under your direction.” Mr. Bumble replied, “If the law supposes that … the law is an ass — an idiot. If that’s the eye of the law, the law is a bachelor; and the worst I wish the law is that his eye may be opened by experience — by experience.”

Experience, real-life experience, is what contributes to making a Supreme Court justice dispense true justice. Before he was on the Supreme Court, Justice Earl Warren had real-life experience as the governor of California. Before her appointment, Justice Sandra O’Connor had real-life experience as a state legislator. Both Justices Warren and O’Connor had remarkable careers on the Supreme Court and protected the rights of individuals against government and corporations.

Judge Sonia Sotomayor has had extensive real-life experience. She has been quoted as saying that her experience as being a poor Latina will help her make the right judicial decisions, and I believe that it will. In addition, Judge Sotomayor is well-qualified for the Supreme Court by matters other than real-life experience, including her academic studies at Yale and Princeton.

I had the privilege and the honor to appear before Judge Sotomayor and Chief Justice Roberts when they were on the US Court of Appeals. In Keady v. Nike, Inc., I appeared before Judge Sotomayor in a case at the Second Circuit Court of Appeals. My client, Jim Keady, was suing Nike for causing him to be terminated as the soccer coach at St. John’s University in New York. Judge Sotomayor ruled correctly, protecting the rights of the individual.

I appeared before Justice Roberts when he was a circuit court judge in Washington, D.C. In that case, Judge Roberts ruled for American Airlines against the rights of a disabled passenger who had been clearly mistreated, and nearly died. Roberts was never poor, never a victim. He is the prototypical judge who tends to side with big business, day in and day out.

We need more justices like Sonia Sotomayor on the court who will make the Rule of Law work for “your tired, your poor, your huddled masses yearning to breathe free,” as we proudly proclaim on the Statue of Liberty. I didn’t notice anything inscribed on the Statue of Liberty, or in the Constitution, about the rights of corporations.

Joel Joseph is chairman of the Made in the USA Foundation, a lawyer and author of Black Mondays: Worst Decisions of the Supreme Court (National Press Books, 1991). Email Phone 310-922-1856.

From The Progressive Populist, August 1, 2009

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