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"The Abandonment of All the Just Checks upon Judicial Authority"

The “Rule of Law” hangs upon an incredibly fine thread: the promise that each will be treated the same under the same rules.  The Latin term for this is “stare decisis” which literally translated means, “stand by things decided.”

John Roberts, seeking confirmation as Chief Justice of the Supreme Court, testified to the Senate Judiciary Committee that judges are “bound down by rules and precedents.” He continued stating that: “the founders appreciated the role of precedent in promoting evenhandedness, predictability, stability and integrity in the judicial process.” In conclusion, Roberts affirmed that: “a sound judicial philosophy should reflect recognition of the fact that the judge operates within a system of rules developed over the years by other judges equally striving to live up to the judicial oath.”

He was stating nothing new. This principle of reliance upon enunciated precedent is at the backbone of our legal system.  As most eloquently stated by Supreme Court Justice Joseph Story:
The case is not alone considered as decided and settled; but the principles of the decision are held, as precedents and authority, to bind future cases of the same nature. This is the constant practice under our whole system of jurisprudence. Our ancestors brought it with them, when they first emigrated to this country; and it is, and always has been considered, as the great security of our rights, our liberties, and our property. It is on this account, that our law is justly deemed certain, and founded in permanent principles, and not dependent upon the caprice or will of judges.

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    A more alarming doctrine could not be promulgated by any American court, than that it was at liberty to disregard all former rules and decisions, and to decide for itself, without reference to the settled course of antecedent principles.  This known course of proceeding, this settled habit of thinking, this conclusive effect of judicial adjudications, was in the full view of the framers of the constitution. It was required, and enforced in every state in the Union; and a departure from it would have been justly deemed an approach to tyranny and arbitrary power, to the exercise of mere discretion, and to the abandonment of all the just checks upon judicial authority. (Emphasis added.)

Yet starting with the Judiciary Act of 1891 followed by the Judges Act of 1925 and then filtering down to the lower federal courts, this “liberty to disregard all former rules and decisions, and to decide for itself, without reference to the settled course of antecedent principles” has become the norm and is one part of the narration of Judicial Tyranny that my campaign seeks to impart.

As an example, take the case of Faye Anastasoff.  Believing that she had mistakenly overpaid her Federal income tax, she properly sued the IRS for a $6,000 refund in federal district court. As is typical, she lost. Not deterred, she took an appeal to the United States Court of Appeals.

In their reply appeal brief, the IRS directed the Appellate Court to an “unpublished” opinion of that court in support of a request to affirm the decision of the lower court refusing to return the $6,000 to Faye.  Before this story can continue, a detour is necessary to understand the nature and import of “unpublished” decisions.

The term “unpublished” does not mean that a court decision is not printed – all judicial decision are available unless sealed from the public for public policy reasons.  Rather, “unpublished” is: “a term of art given to those dispositions designated by the issuing court as having no (or limited) precedential value.”

What?  A court can issue opinions that “disregard all former rules and decisions, and to decide for itself, without reference to the settled course of antecedent principles” a matter brought before it?  Yes, it now can. Moreover, if an identically-situated litigant subsequently appears before the same court, that court is at liberty to decide the subsequent matter differently as it is not bound by its prior ruling on identical facts and law.  Is this in practice what we all, with hands on hearts, pledged in theory throughout grade school?  “Liberty and Justice for all.”

How could that new “Rule of Law” possibly comport with the Supreme Court’s explicit holding: “[L]itigants in similar situations should be treated the same, a fundamental component of stare decisis and the Rule of Law generally.”

But back to Faye.  The IRS cited an “unpublished” opinion to the Court in support of its refusal to give her back her overpayment.  Noteworthy is that this particular court, like all federal appellate courts, had a Local Rule, L.R. 28(a)(i), which stated that: “unpublished opinions are not precedent and parties generally should not cite to them.”

The IRS won the appeal, but Judge Richard Arnold, writing the decision for the unanimous panel, held that: “the portion of LR 28(a)(i) that declares that unpublished opinions are not precedent is unconstitutional under Article III, because it purports to confer on the federal courts a power that goes beyond judicial.”  In essence, Judge Arnold broke with his black-robed brethren to proclaim that the emperor was not wearing any clothes.  In particular, Judge Arnold wrote:
Inherent in every judicial decision is a declaration and interpretation of a general principle or rule of law. This declaration of law is authoritative to the extent necessary for the decision, and must be applied in subsequent cases to similarly situated parties. . . . The doctrine of precedent was well-established by the time the Framers gathered in Philadelphia.. See, e.g., 1 Sir William W. Blackstone, Commentaries on the Laws of England *69 (1765) (“it is an established rule to abide by former precedents”). To the jurists of the late eighteenth century (and thus by and large to the Framers),the doctrine seemed not just well established but an immemorial custom, the way judging had always been carried out, part of the course of the law.  In addition, the Framers had inherited a very favorable view of precedent from the seventeenth century, especially through the writings and reports of Sir Edward Coke; the assertion of the authority of precedent had been effective in past struggles of the English people against royal usurpations, and for the rule of law against the arbitrary power of government.  In sum, the doctrine of precedent was not merely well established; it was the historic method of judicial decision-making, and well regarded as a bulwark of judicial independence in past struggles for liberty.

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In addition to keeping the law stable, this doctrine is also essential, according to Blackstone, for the separation of legislative and judicial power. In his discussion of the separation of governmental powers, Blackstone identifies this limit on the “judicial power,” i.e., that judges must observe established laws, as that which separates it from the "legislative" power and in which "consists one main preservative of public liberty." 1 Blackstone, Commentaries *258-59. If judges had the legislative power to “depart from” established legal principles, “the subject would be in the hands of arbitrary judges, whose decisions would be then regulated only by their own opinions . . .”

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The Framers accepted this understanding of judicial power (sometimes referred to as the declaratory theory of adjudication) and the doctrine of precedent implicit in it.  Alexander Hamilton concludes that “[t]o avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them.” 

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We conclude therefore that, as the Framers intended, the doctrine of precedent limits the “judicial power” delegated to the courts in Article III.

Judge Arnold articulated the reality of the “unpublished opinion” option for judges: “Those courts are saying to the bar: ‘We may have decided this question the opposite way yesterday, but this does not bind us today, and, what's more, you cannot even tell us what we did yesterday.’  As we have tried to explain in this opinion, such a statement exceeds the ‘judicial power’, which is based on reason, not fiat.” 

Though ruling against her, Judge Arnold encouraged Faye to petition the entire circuit court to review his decision, which she did.

This frightened the United States Department of Justice.  Why?

The Department of Justice has 40,000 lawyers which make it privy to more unpublished opinions than any single litigant. As such, and because it is a government-funded and well-organized law firm, those lawyers have the ability to pick and choose among their database of unpublished opinions to find those that support their particular position in a given lawsuit. This way, the government can selectively advance the development of law it favors – and retard law it doesn’t.
 
In Faye’s case, Judge Arnold’s decision threatened to upset this massive advantage the government possesses.  The notion that the full appellate court would approve of Judge Arnold’s cogent opinion was something the government didn’t want to risk.

Thus, the IRS mooted Faye’s case and thus “un-rung the bell” that Judge Arnold had rung by suddenly paying, though it had won the appeal, Faye $11,437.3 – the sum total of her claim of $6,000 with interest.  Procedurally, Fay had nothing to appeal and thus her case was procedurally over.  Therefore, in a published opinion, the full appellate court opinion observed that: “Here, the case having become moot, the appropriate and customary treatment is to vacate our previous opinion and judgment, remand to the District Court, and direct the Court to vacate its judgment as moot.”

Are unpublished opinions really a problem.?  The Office of the U.S. Courts reported that in 2000, of the 27,516 appeals taken nationwide, 21,895 decisions were unpublished or four-fifth of all the appeals.

Is this the proper role of government?  To use the power of its purse to prevent the articulation of significant issues and support the “secret” law developed in these “unpublished” opinions.  It is incredibly hard to advance issues through litigation.  The cost in attorney fees, time and anxiety is a deterrent to most litigants and their attorneys.  And when the government brings the resources of the monolithic and perversely-named Department of Justice to further block the development of law, the death knell of Liberty rings loudly as a government expressly ordained and established to “establish justice” is doing just the opposite.