Can the Great Writ Regain its Greatness - Daylight Through the AEDPA

This recent term of the Supreme Court of the United States opened the door to new and welcome discussions of federalism.  There is no argument here of the importance of federalism in regard to the powers of the states to define and expand rights beyond those guaranteed by the Constitution, but it turns federalism on its head to pretend that its purpose is to limit those rights guaranteed to all by the Constitution.  Two cases this term took a back door approach to recognizing this understanding of dual sovereignty in regard to criminal convictions subject to habeas corpus review.  

To clarify, what is meant by habeas corpus is NOT the habeas corpus enumerated in Article 1, Sec. 9[2] of the Constitution as history demonstrates that the Suspension Clause referred to pretrial detention and not prisoners held in state custody.  However, the Judiciary Act of 1867 extended the writ to “all cases where any person may be restrained of his or her liberty in violation of the constitution, or of any treaty or law of the United States.” Judiciary Act, ch. 28, § 1, 14Stat. 385 (1867).  Therefore, by 1867, habeas corpus was both a post-conviction remedy and that it applied to state court litigants.  The year following passage of the Judiciary Act welcomed the ratification of the Fourteenth Amendment defining citizenship and thus who was eligible for individual protection of liberty as well as ensuring that the federal government could restrict the powers of the states if they sought to infringe upon the rights of citizens.

It is reasonable to surmise that the Framers included Suspension Clause in 1789 to protect individuals from the power of a strong federal government; it is equally reasonable to surmise that the post-Civil War Congress distrusted state governments to comply with and enforce federal law when it passed the Judiciary Act and the Fourteenth Amendment.  As it turns out, the fear of the original Framers was real, just misplaced.  Rather than an overly aggressive federal government denying states power, individual states had demonstrated a capacity both of armed rebellion and constitutional defiance all to deny individual liberties to their own constituents. The federal government therefore had to step in to states where policies and practices denied protected and enumerated rights to citizens of the United States.  As the nation grew and evolved, as it continues to do, it became clear that states would not necessarily play the protective role envisioned by the Framers; they would instead discriminate- and discriminate in violation of federally guaranteed rights. 

Within a century of ratification, it finally became clear to the Court that the Reconstructionist Amendments changed fundamentally the relationship between the states and the federal government.   State powers never diminished; the federal government merely enhanced its commitment to protecting the very same rights (with a promise that everyone would be included) that it originally promised to protect in the first place.  And because the Supreme Court decides, ultimately, the expanse of those rights, habeas corpus must be guaranteed without much limitation.  That was so until 1996 when Congress passed - the unbelievably titled "Antiterrorism and Effective Death Penalty Act".  As we now know, that very Congress in 1996 overreached by passing another absurdly-named-bill, the "Defense of Marriage Act".


The AEDPA was enacted in response to the tragic Oklahoma City bombing by Timothy McVeigh in 1995.  McVeigh was executed by the people of the United States on June 11, 2001, 8 months after the suicide bombing of the USS Cole in 2000 and 3 months before the airplanes-come-missile attacks of September 11, 2001 calling into question whether the bill was effective at all on the anti-terrorism front.  To be sure, capital punishment was pretty effective in those days boasting the years in which highest number of prisoners lived on death row and the highest number of those killed from death row.  The national trend, however, since that time has been slowly to seek eradication of the death penalty in state after state after state.  The AEDPA failed against terrorism and is now protecting the state power to execute, a power the states are rescinding of their own volition.  However, the purpose of habeas corpus review was never to allow for comity; it was to ensure a foundation of rights for all.

Yet, the AEDPA restricts the timing of a habeas complaint and regulates the kinds of eligible claims for federal review in a manner so severely restricting the right to habeas corpus that it is as broad an overreach of Congressional power in regard to individual access to federal courts as the DOMA was to individual access to basic human dignity.  Just as normal, thinking people cannot be afraid or threatened by their government providing all lawfully wed couples identical treatment in marriage benefits, normal, thinking people cannot be afraid or threatened by their government providing all constitutional claims in criminal cases identical treatment in judicial review. 

Everything in increments, however.  The Court did not this term guarantee a fundamental constitutional right for marriage equality as it did, say, in Loving v. VA striking down a state law criminalizing interracial marriage.  Mr. and Mrs. Loving, lawfully married but of different complexions received a sentence of a year in prison, suspended for 25 years, so long as they left the Commonwealth of Virginia.  In the judge's words, "Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix."  Indeed, the high court of Virginia - and 15 other states - had previously ruled that the criminal anti-miscegenation statute served a legitimate state purpose of keeping the races segregated.  It was not the violation of the First Amendment and all rational thought - including the state's argument that it punished blacks and whites identically for miscegenation (confusing "equal protection" with "equal punishment") - that made the case easy for the Warren Court because (unlike the current battle for equality) the history and the intent of the Fourteenth Amendment revolved around equality of the races.  As to the eventual guarantee of marriage equality, this will be a state by state battle and it appears that the tide of public opinion favors dignity and respect for all couples.  To be continued...

Back to the AEDPA - last term, the Court decided Martinez v. Ryan which created a tiny workaround the AEDPA's provision that the federal court could deny a claim based upon an adequate and independent state ground (procedural default under state law) in that the Court narrowly carved out a cause of action where counsel was ineffective.  In Martinez, the Court stated that if counsel fell below an ordinary attorney by failing to raise claims thereby making those claims ineligible for federal review due to a state court restriction, that ineffective assistance of counsel claim could establish an avenue for the federal court to consider the claim. The ruling was "equitable" and not constitutional. Finding cause and prejudice to open the habeas door would not release the inmate from his prison.  Rather than entitling the petitioner to relief, it merely allows the federal court to review the underlying claim. 

Building on Martinez in this term, the Court decided Trevino v. Thaler essentially expanding the rule in Martinez to the initial habeas claim in federal court where the state law does not specifically state that ineffective assistance of counsel claims must first be raised in the initial state court proceeding.  Further, the Court decided McQuiggin v. Perkins which avers that a claim of actual innocence can override the strict statute of limitations under AEDPA.  

The dissents argued that states should have finality over their own convictions and putting their own citizens to death.  But the flaw in that idea - and indeed in the AEDPA itself - is that habeas corpus serves the opposite purpose.  After the Civil War, it became clear that the federal government would protect fundamental individual liberties but the states were free to expand those liberties at any time.  This, indeed, had to be the intent of many of the Framers of the original document even in their compromises to ratify the Constitution, as they had already seen the pitfalls of too weak a national government during the period of the Articles of Confederation.  Just as the Court will ensure that states provide minimal liberties to their inhabitants, it will ensure that lawyers provide minimal competence to their clients.  And it will have the power and authority to review individual cases to guarantee these minimal basic requirements.

Habeas corpus creates a post-conviction remedy when trial and direct appeal has failed - designed to release from confinement those who have been convicted in violation of the Constitution.  It did not protect antiquated ideas of federalism; it clamped down on state power.  Habeas corpus vows for the supremacy of the United States Constitution as defined by the Supreme Court within the case and controversy presented.  It is the flip side of federalism, recognizing that state powers must be constrained by the individual liberties guaranteed by the Constitution.  The 1996 AEDPA prohibits Article 3 courts from their constitutional role and seeks to revert to a defunct idea of comity obliterated by the Fourteenth Amendment.  There is no state authority to finality of any verdict or sentence rendered in violation of federal constitutional principles...even if those principles have been suggested but not yet verified by the Supreme Court.  

The "equitable" rather than "constitutional" decisions in Martinez, Trevino and McQuiggin all dance around the fundamental question of whether the AEDPA itself is an overrreach by Congress denying individuals access to the courts. Creating narrow escape hatches through ineffective assistance of counsel claims at any stage of the proceedings and to recognize claims of actual innocence as cause and prejudice relieving the petitioner from the statute's heavy burdens uphold the indefensible AEDPA.  The real question is to determine whether the AEDPA impermissibly restricts the First Amendment right to petition.

Two principles of federalism emerge from the Court's rulings in this current term striking down federal laws.  As to the Voting Rights Act of 1965, the Court deemed the restriction on state powers to regulate their own voting rules unconstitutional under the 15th Amendment as the use of 40 year old data was deemed an inappropriate basis for federal legislation.  It did not say that prejudice had ended or that Congress could not regulate the states in regard to election law, merely that the antiquated data could not support the pre-clearance restriction.  As to the DOMA, it ruled that the federal government could not treat some marriages as more equal than others.  States have powers (they have never had "rights") to expand liberty, but no federal restriction can usurp the state's power to recognize fundamental individual rights; indeed, once states so acknowledge, the federal government is bound to respect the rules of the states.  

This really is the essence of federalism, certainly federalism post-Fourteenth Amendment: fundamental rights will be protected by the federal constitution and states may (and should) increase the population subject to those individual liberties in order to guarantee full citizenship privileges and immunities to all.  The original Framers believed that states would exercise this very role as it would increase the voting franchise and thus their clout in Congress.  But when that went awry through prejudice and discrimination resulting in state oligarchies restricting individual liberties, the roles reversed so that the idea of democracy might flourish by virtue of a strong federal government celebrating the individual over the state.

Within this dual sovereignty lies post-conviction habeas corpus.  Unlike the obligation of the federal government to respect state expansion of rights and liberties, habeas corpus recognizes that the federal government, too, has an interest in protecting the fundamental rights of individuals.  Thus, the role of Article 3 courts is precisely to ensure that the minimal protections of the constitution apply to everyone in every court of these United States.  Like the DOMA, the AEDPA seeks to destroy that delicate balance.   And the Court seems somewhat receptive to reclaiming its authority with these incremental rulings over the last two terms.  Chipping away at the constraints of the AEDPA with endless claims of ineffective assistance of counsel is no answer - counsel must move to eliminate the AEDPA.

The Devolution of Individual Liberties on a Case by Case Basis

The Fourth Amendment prohibits unreasonable searches of people, papers, possessions and places of residence. To establish reasonableness, the Amendment requires warrants to be both specific and based upon probable cause.   The question that arose in Missouri v. McNeely, SCT Docket No. 11-1425, was whether blood alcohol content in a driving under the influence case established a per se exclusion from the warrant requirement.  That answer is "no" but the result is a bit unsteady.  True understanding of the issue requires a bit of background.

The first case really addressing the invasion of a person's body by law enforcement is Rochin v. CA, 342 U.S. 165 (1952).  In that case, the Court concluded that the use of a stomach pump to remove potential evidence from an individual shocked the conscience violating principles of due process of law.  But, the history of that case must be understood in order to grasp the blase attitude of the Court in its decision in McNeely.  In People v. Rochin, 101 Cal.App.2d 140 (1950), the case overturned in Rochin v. CA, the California Court of Appeal found that the police broke into a man's house, asked him to answer a question he need not answer, watched him swallow two capsules, handcuffed him, transported him to a hospital and had his stomach pumped...for 2 morphine pills and a 60 month jail term...YET...because California did not accept the exclusionary rule, the Court of Appeals was bound by precedent to uphold the conviction.  The decision was scathing against the actions of the police, the ethics of the physician who conducted the stomach pump, and the lack of an exclusionary rule in California. 

Although the California Supreme Court refused to hear the case, two of those justices wrote powerful dissents stating, among other things, that police when left to their own devices cannot be trusted.  The two justices waxed poetic about the history, meaning and necessity of the specific warrant requirement and of the absolute need for the exclusionary rule in order to compel police to comply with the laws they, themselves, are charged with enforcing.  One dissenting judge even declared,

We are told by our national leaders that a state of emergency now exists throughout the world-that our liberties are in jeopardy-that to preserve those liberties we must unite with other free nations of the world in establishing the most potent military force of all time to resist totalitarian aggression. What are these liberties which are threatened? Is not the right of privacy, guaranteed by the above mentioned constitutional provisions, one of those liberties? There can be no question that the right of privacy is one of these fundamental rights, guaranteed by the Bill of Rights-the charter of our civil liberties. Could anyone imagine such right being any more ruthlessly violated under a totalitarian regime than it was in the case at bar? It makes little difference whether the minion of the law who perpetrates such outrages has the official title of commissar, gestapo, sheriff, policeman, constable, game warden, or whatnot, the violation of one's right of privacy is just as deplorable. Merely to say that what the officers did in this case, was wrong, is not enough-they will do it again and again if the courts continue to hold that the evidence they obtain by such unlawful means may be used in criminal prosecutions.

This was 1950.  Those judges were the finest example of what the Framers hoped for with an independent judiciary.  No doubt, this led to the acceptance of the certiorari petition.

In Rochin v. CA, which predates the incorporation doctrine, the Court reversed under the 14th Amendment Due Process Clause.  The best thoughts in that decision emanate from the two concurring opinions: of Justice Black - who called the amorphous nature of due process of law into question, concerned about its vagaries and demanding the incorporation of the Bill of Rights under the 14th Amendment; and Justice Douglas who remarked, "I think that words taken from his lips, capsules taken from his stomach, blood taken from his veins are all inadmissible provided they are taken from him without his consent. They are inadmissible because of the command of the Fifth Amendment." Rochin v. CA, 342 U.S. at 179 (Douglas, J. concurring).  To these Justices, this was a clear violation of the right not to be compelled to bear witness against oneself.

After Rochin, the Court decided the case of Breithaupt v. Abram, 352 U.S. 432 (1957).  Mr. Breithaupt was convicted of involuntary manslaughter after he caused an accident by driving erratically.  Injured and unconscious, at the hospital, a police officer directed a physician to draw blood which was then provided directly to the officer who had it tested at a police lab.  The results, indicating a high blood alcohol content, were admitted at trial. 

This did NOT shock the conscience of the Court as it was not brutal or offensive.  And, the majority went into a long description of the scourge of alcohol related deaths on the highway as reason for extreme measures.  It was 1957.  The highways had just been invented but airbags had not.  The dissents did not disagree with the problem of dangerous highways and inebriated drivers- merely the Court's role in the application of solution.  The whole point of due process is to remove certain rights from the reach of law enforcement...such as sticking a needle into a fellow human being in order to extract bodily fluids.  The dissenting justices correctly saw no difference between a stomach pump and a blood draw; no difference between the scourge of drugs and that of drunk driving.

Next came Schmerber v. CA, 384 U.S. 757 (1966) and perhaps the most remarkable aspect of the case is that by the time Mr. Schmerber was in the hospital arrested for driving under the influence, he already had a lawyer - who told him not to consent to a blood draw...so he did not consent and yet a doctor (allegedly treating him for his injuries) at the behest of a police officer drew his blood and gave it to law enforcement for analysis.  The Court found nothing wrong with this picture; indeed the majority opinion made up - with no supporting facts - that the police officer felt he had inadequate time to obtain a warrant and then with the stroke of a pen sanctioned police officers to order physicians to draw blood from suspects.

Again, the dissenters charged back: Justice Warren reiterating his dissent in Breithaupt and Justices Douglas and Black reiterated that compelling an individual to permit extraction of his bodily fluids is a violation of the 5th Amendment.  Indeed, they illustrate that the notion of "testimonial" and "communicative" evidence as a touchstone for acting as a witness against oneself has no foundation in precedent.  As to the 4th Amendment analysis, Justice Fortas even remarked in dissent that extracting blood by the state, particularly over protest, amounted to tortious violence.

Onward to Missouri v. McNeely where the Court remarkably combines all of the worst aspects of each of the prior cases to come to no real conclusion regarding the warrant requirement for extracting blood from one suspected of driving under the influence.  The Court ignores the significance of the Breithaupt case where Mr. Breithaupt was not only suspected of driving while inebriated, he killed people.  He was prosecuted for involuntary manslaughter, not driving under the influence.  The blood extracted from him while he was unconscious may or may not have influenced the guilty verdict.  But, once convicted, he did not even appeal.  His case came in through post-conviction habeas corpus, as an afterthought which may (or may not have) influenced the state and then the federal courts.

These massive procedural and factual differences were lost on the Court - they could not see the slippery slope and so slid down blindly.  Putting aside that appellate courts are not concerned with guilt or innocence, the other cases, Rochin and Schmerber - and McNeely - were prosecutions for the sins of drugs and drink and all came up on direct appeal.  They were policy-driven and not crime driven cases.  No one was hurt and nobody died.  Rochin was arrested in 1949 for morphine pills - the tactics were horrific and for what?  For a sixty day misdemeanor sentence.  In Schmerber, while the defendant was injured, no one else was involved.  He refused to blow into a newfangled Breathalyzer test (and his refusal entered in evidence without objection - the reason that 5th Amendment claim was rejected by the Court).  And, the purpose of the driving under the influence laws had been accomplished - he was off the road and would be for some time for the refusal of the breath test.  Still, he was more like Mr. Rochin and less like Mr. Breithaupt; but not to the Court, now bent on evidentiary science to prove guilt rather than constitutional principles to protect liberty.

By Mr. McNeely's case, all of the rules had changed: uniform rules on blood alcohol content came about due to federal funds for highway development and maintenance wherein Congress would only disperse funds to states that criminalized driving with blood alcohol content of .08 or higher.  That is, there is no magic number that indicates impairment - simply one Congress could agree upon before handing out money.  Breathalyzers became commonplace by the 1980's and are far less invasive: most states suspend licenses of anyone who refuses to submit, regardless of conviction.  Video is ubiquitous so that officers can film all of the roadside tests for view by a jury - or by a magistrate to issue a warrant for a blood draw.  And, communication has sped to the point of instantaneous connection wherein some states have developed a warrant procedure via email or Skype.

So, instead of walking through the history and rationale even of Breithaupt (where no other means had been developed to test blood alcohol content and the actual offense involved death), and revisitng the wisdom of Rochin, the Court veers into statistics and popularity of certain techniques - a course proper for a legislature, not a Court.  It then merely claims that there is no per se exigence related to driving under the influence and if a warrant can be obtained it should be...but if it's too much trouble, then it's not really a big deal.

At the same time, the Court acknowledges that most states have a warrant requirement and indicates that there are better, more consistent results with the warrant requirement and so obtaining and executing a warrant for a blood draw improves law enforcement overall.  Even though the results are more fair and less challenged when the police establish probable cause and present that to a detached magistrate for a ruling - and even though this enhances due process of law - the Court refuses to require it.

The McNeely decision splits up like this: Justice Sotomayor joined in full by Scalia, Ginsburg and Kagan makes this wishy-washy-cop-can-use-his-judgment-to-get-or-not-get-a-warrant determination and there is nothing inherently exigent about a "routine" driving under the influence case so the totality of the circumstances will dictate exigence.  In direct opposition is Justice Thomas who dissents (with a hypothetical about police watching a man carrying bundles of marijuana to a bonfire; it makes no sense but it is funny, though not intentionally so) by declaring that all driving under cases establish exigent circumstances to draw blood - no warrant, no problem.  Justice Kennedy joins the majority in part but really limits his decision to the statement that always dispensing with a warrant requirement is inconsistent with the Fourth Amendment.  

The most interesting - and bizarre - opinion is of the concurring in part and dissenting in part Justices Roberts, Alito and Breyer who desperately want to make a special exception for driving under the influence that would swallow the warrant requirement (which Justice Thomas just comes out and says) but they just...can't...get...there.  So, they like this idea better: driving under the influence presents presumptively exigent circumstances unless the police officer feels that he might be able to get a timely warrant.  They provide the examples of exigence and equate the need to extract blood from a lone driver pulled over for erratic driving to any of the following circumstances: a burning building (where police go in to SAVE people) or hot pursuit (where police are seeking to LIMIT damage of fleeing felons) or like having information about an injured person and entering a home to assist her.  That is NOT what blood alcohol content evidence is like at all.  It is not an exigent circumstance - it is simply very, very good evidence to convict someone for driving under the influence that dissipates over time.  But, investigating a crime and gathering evidence is not a reason to dispense with the Constitution.

In "routine" driving under cases, the refusal to blow into a breathalyzer or have a blood draw is enough, in most if not all states, to suspend a driver's license for several months.  Whether or not there is a conviction, that might be enough to keep the roads safer and wake the individual up to the potential danger involved in impaired driving.  And, isn't that the point of the policy?  No one is injured, no buildings are burning and no one is in further danger.  Taking blood under this rubric is much, much more like Rochin than it is like Breithaupt.   A plausible argument could be made that Mr. Breithaupt's treating physicians needed to draw his blood since he was unconscious and perhaps in need of more profound care requiring the medical personnel to know what was in his system to know what drugs not to give him.  Not perfect, but plausible.  All of the other cases involve police officers directing civilians to invade another person's body for evidence of a suspected crime where no one else was harmed - and the civilians DOING it with no court order - which is just mind-boggling, and terrifying, when one thinks about it.  There is not a chance that the Framers - who fought against the presence of an authoritative police state - intended this result.  It is just wrong.

The correct decision is the one lamented in the first Rochin case; the one where the frustrated judges adhered, kicking and screaming, to irrational precedent, practically begging the legislature to advance an exclusionary rule - and admonishing the tactics of the police and the ethics of the physician who pumped the defendant's stomach.  They waxed poetic about the role of government and the rights of the citizen.  Their eloquence persuaded, no doubt, the Court to take the certiorari and reverse the conviction out of sheer horror that the police could barge into someone's home and haul him out in handcuffs to have the contents of his stomach pumped into a bucket so they could prosecute him for essentially being a drug addict.  

The voices of the great Justices Douglas and Black harken to us to dispense with this idiocy that courts are here to enforce the will of the legislature or popular sentiment.  Courts are here to enforce the constraints of the Constitution whether people like it or they do not, whether it makes a police officer's job easier or it does not, whether it forces legislators back to law drafting or it does not.  Courts are here to protect individual liberties from the will of the masses.  That is exactly why Article III judges were given lifetime tenure.  

McNeely is a worthless non-decision that makes no change for the rights of individuals.  It does not enforce a warrant requirement to extract bodily fluids from a fellow human being.  It does not review the rationale behind any of the prior cases and reverse the misbegotten findings that blood is not testimonial in the same way that putting on a shirt is not testimonial.  It does not  venture into the meaning and purpose of being secure in one's person from an overeager government official.  

Recently, the Court ruled that it was trespass for drug sniffing dogs to poke around a yard thus requiring a warrant for that activity.  In McNeely, the very same Court ruled that it was NOT trespass for the police to order a civilian to perform a needless medical test by placing a sharp object into that person and - in the words of Justice Douglas - bloodletting.  Is there any more clear invasion of privacy than literally entering a body and removing its substances?  

This idea that the results of the blood test are somehow not testimonial, too, is laughable: asking someone to walk a certain way or put on a shirt is not the same as forcing him to sit still while a medical professional (whom he can now no longer trust to assist him in any medical treatment as the physician has become an agent of the government) draws his blood for the sole purpose of prosecuting him.   As Justice Black remarked, "[i]t is a strange hierarchy of values that allows the State to extract a human being's blood to convict him of a crime because of the blood's content but proscribes compelled production of his lifeless papers." Schmerber v. CA, 384 U.S. at 775 (Black, J. dissenting). 

The Court had the chance to do something profound, something grand, to restore so many rights taken away while promoting disastrous policies prohibiting alcohol and drugs; it could have required a warrant for every single medical invasion; it could have made a warrantless entry into a body presumptively unconstitutional as it does for entries into homes; it could have concluded that bodily fluids were encompassed in a privacy sphere requiring either the prohibition of use as testimonial evidence when taken by compulsion or a directive that due process requires significant protections to shield individuals from indignities and affronts to bodily integrity. Instead, it left everything in the hands of the police.  Not only does this result fail to provide any guidance, it is without question, the exact opposite of what Framers intended.

Fools Rush In

Angels in government have a long history; Jefferson asked if men could not be trusted with self governance were kings not men but angels entrusted to govern others.  Lincoln urged us to be friends seeking the better angels of our nature.  Madison explained that because we are not angels, we require "auxiliary precautions" to guarantee fair government.

It is in celebration of democracy that the system of checks and balances emerged in which the independence of the judiciary ensures a government of laws and not men.  It is precisely because we are human, full of flaws, that we require restraint which grew here in the form of an independent and impartial judiciary. 

Judicial tenure, however, requires good behavior; actions contrary to law and decency shall not be rewarded.  And, so there are in place mechanisms by which to challenge the impartiality and independence of individual judges.  In recognition of the notion of an independent judiciary, the recent Massachusetts case protects from scrutiny a judge’s thoughts and notes about individual cases.  Here in Massachusetts, the Suffolk County (Boston) District Attorney has accused a judge of bias -   according to the prosecutor, he rules in favor of defendants too often to be impartial.

To clarify: the Executive Branch has declared that the Judicial Branch protects individual liberty too much to be fair to the interests of the Commonwealth...despite the trust the people place in all of government to protect liberty.  Prior challenges to sitting judges have occurred, but for the opposite reason.  In 1973, Judge Troy was disbarred by the Supreme Judicial Court for abusing his office by, among other things, depriving criminal defendants of their constitutional rights, hiring but not paying lawyers who appeared before him, and neglecting his actual, judicial duties.   It was after Judge Margaret Scott was awarded the Kinlock Award by the Massachusetts Juvenile Police Officers Association bestowed upon those demonstrating, “excellence in his or her field of endeavor; that endeavor must be associated with our young people... [those] endowed with understanding, compassion and patience and a willingness to do more than the next person for tomorrow’s adults" that she was sanctioned for depriving those appearing before her of their individual liberties.   Understanding, compassion and patience apparently includes making up laws to convict the innocent, charging unlawful fines, and removing terrified children from the care of their loving parents.

Past judicial challenges involved the deprivation of Constitutional rights.  The current charge against the judge who shall remain nameless  may be the first time that judicial protection of liberty faces scrutiny.  Even if we put aside the question of whether the Executive Branch even has the authority to challenge the Judiciary - which may very well be prohibited by the Massachusetts Constitution Pt. 1 Art. 30, it is important to note that the judge in question was appointed by a former federal prosecutor and a Republican governor not known to be “soft on crime”.  The Executive Branch’s current disappointment in this particular judge’s interpretation of the law is less credible than Eisenhower Republicans’ disappointment in the way Earl Warren understood the federal Constitution.   But even they did not investigate him for bias due to decisions from his Court.

American history decries the prosecutors' actions against a sitting judge.  As noted in the recent opinion, John Adams spoke highly of an independent judiciary; but, he had to be disappointed in the case that assured the concept.  Politics are a nasty business and it has ever been thus.  Mr. Adams’ Federalist party reviled Mr. Jefferson’s Democratic-Republican party.  The peaceful transition of power from one to the other in 1801 is still a remarkable feat about which the United States should be proud.

The rivalry, the animosity and the disgust, indeed led to one of the greatest legal decisions of this nation’s history ensuring the independence and the impartiality of the federal judiciary which we understand now to be a fundamental aspect of all American government.  Adams lost a bitterly contested election to his former friend come rival, Thomas Jefferson.  The Adamses could not wait to leave the swamp of the Capitol and head home to Peacefield.  As one of his last acts, President Adams appointed several justices of the peace and left their signed commissions to be delivered.  No one did so and President Jefferson famously ordered them not to be delivered.  Mr. Madison, Jefferson’s Secretary of State, obliged. 

One particular appointee, Mr. Marbury, was so enraged at being denied his commission that he sued for it directly in the United States Supreme Court under a legislative provision so permitting.  The Chief Justice of the Supreme Court of the United States was none other than Adams’ appointee John Marshall who, like Adams, was an ardent Federalist.  Indeed, his appointment to the bench was part of a Federalist Party power grab - the Midnight Judges Act.  We forget how young and vulnerable this nation really was.  And, we forget that those who founded this nation were men and not angels.

Surely, Marbury presumed, Justice Marshall would see fit to grant him his commission.  So, it was an historic and game-changing moment when the Court ruled otherwise.  On the one hand, Justice Marshall minced no words chastising the president for failing to make good on his predecessor’s appointments; the commissions were signed and ready to be delivered.  On the other hand, Congress erred in its statute granting right to sue directly in the Supreme Court as Article 3, Section 2 of the Constitution grants original jurisdiction to the Supreme Court in limited circumstances.  Marbury v. Madison’s almost quaint and petty circumstances permitted the Court to become Supreme in the truest sense; there was no fear of retribution when Marshall criticized a sitting president or corrected Congress or determined a result with which no party was happy.  Whether popular or unpopular, Justice Marshall ensured an independent judiciary with this brilliant split of the baby.

Marbury, justified in his anger and his cause, lost as the court had no jurisdiction to hear the case.  Had Marbury sought his commission in an inferior court, he likely would have won, but he hedged his bets on the Federalist court.  John Adams had to rue the rushed appointment of Justice Marshall, right?  Maybe at first, as moments in nascent nations tend to try men’s souls.   But, many years after this fateful decision, in a testament to his own character, Adams declared that John Marshall was a gift to the nation and appointing him was one of his proudest accomplishments.

Putting this history into context, the current investigation of a judge sitting in a busy, low level trial court is an attack on justice itself.  American courts are courts of the people.  They are not arms of the prosecutor or platforms for the powerful.  They are, indeed, a place where individual liberties should be celebrated. 

Today, the Executive branch, in the form of the District Attorney is fighting a petty, undignified battle about which John Adams and Thomas Jefferson and James Madison would be ashamed.  For all of their differences and for all of their human foibles, our Framers genuinely believed in the rights established in the Constitution; we in Massachusetts are fortunate that one of these men was the architect of our own government.  Losing a battle in defense of democracy is noble; the Framers understood that men could more easily be likened to fools than angels and yet trusted people to do the best they could, allowing for history to answer the question of whether men could govern themselves without a monarch.

When powerful people in any branch of government abuse authority in order to deprive individuals, especially the most vulnerable among us, of their right to be heard, to find fairness and fight for liberty, we have a duty to halt that practice.  The strength of this nation rests on a foundation balancing rights, responsibilities and freedom.  Thus, when a judge of any court protects individual liberty and seeks to find the better angels in all who appear before him or her, that judge is a gift to the nation.