Thursday, June 16, 2011

Courts Gone Wild

Bottom line: We are seeing conservative courts undermine our legal system in their pursuit of political ends instead of a pursuit of justice.

It occurs to me that the recent Wisconsin case, Wisconsin v.
Fitzgerald, Fitzgerald, Ellis, Suder and La Follette, , on the legitimacy of the public union busting legislation, and the Citizens United case in the US Supreme Court share an alarming example of judicial overreach and abuse of our legal system for political purposes.

Two bedrock principles of our legal system:

First: Trial courts determine what the facts are and they make the initial rulings of law.

Our appeals system is almost entirely limited to review of the legal holdings - appellate courts do not "retry" the facts and liticants can't appeal the trial court's factual findings (except in extraordinary circumstances.) Appellate courts use the facts as developed on the record by the trial court. Trial courts are good at determining facts, appeals courts are supposed to be limited to ruling on legal issues.

Second: Appellate courts only review the issues brought to them; issues "preserved on the record" for appeal. This is to promote judicial efficiency and economy and limit courts from overreaching their mandate and discrediting themselves.

In this Wisconsin case, it seems that the Wisconsin Supreme Court majority didn't decide the appeal from the court below and didn't restrict itself to the developed record.

Instead, it cobbled together a process of "original jurisdiction" to avoid being restricted to the well developed and fully aired factual record.

In other words, this court avoided one of the central principles of our hierarchal legal system so that it could make up its own factual record and achieve the result it wanted. (See, Abrahamson, C.J., dissent at para 96, as well as the dissent of Judge Crooks starting at para 130)

In a similar display of judicial arrogance, in Citizens United, the US Supreme Court violated that other central tenant of our jurisprudence: appeals courts limit themselves to the issues preserved for appeal.

In Citizens United, when the case first made it to the Supreme Court, the appeal did not include the issues which the court ultimately ruled on. But the Robert's court sent the litigants back to brief and present another issue entirely. One that hadn't been preserved for appeal, but which the Roberts' majority had decided it wanted to make law on.*

These two cases are glaring examples of high level two courts manipulating the system and ignoring bedrock principles of judicial review so as to reach a political end.

And _that_ is the real tragedy of the modern, right wing embrace of overtly politically driven courts.

More and more people believe the courts are nothing but political juggernauts.

And that is just one more example of right wing anarchism: "Government is the problem."

What kind of "traditional value," which "conservative principle" calls for unrelenting attacks on the very structure of our government?

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* I am not arguing against judicial activism: in properly limited role, judicial activism has been played a central and important role in the development of our laws.

I am arguing that when high courts don't follow the most basic and important rules and they pursue political results instead of pursuing justice, our country suffers. Deeply

See these pervious blogs on judicial activism and related issues:

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