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GUEST COMMENTARY: Disunity of federal and state law threatens equal justice

Tuesday, October 18, 2011 | 12:37 p.m. CDT

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.

It’s time for Congress to intervene and uphold the integrity of federal law.  That has subsequently been eroded as one of the unintended consequences of the unfettered discretion given to the U.S. Supreme Court during the Reagan presidency.

There was a time when the U.S. Supreme Court would hear more than 200 cases a year. During the 1980s, the court averaged 160 cases a year, but that has fallen to fewer than 80 cases a year for the last 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 by 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. So federal rights mean different things in California than they mean in Missouri.

This disunity is harmful to our constitutional system. It 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 8th Circuit of the U.S. Court of Appeals is one such rogue circuit. 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.

On Oct. 7, one such case when the U.S. Supreme Court denied certiorari was Coates v. Powell, for which I was Coates’ lawyer.

The 8th 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. It has also twisted the 2001 U.S. Supreme Court case Buckhannon dealing with a very limited type catalyst theory claim 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.

Thus has been created 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 and 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 cases the 8th Circuit ignored the Sole holding and continued its erroneous application of Buckhannon.

The Coates case also contained a 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 judges play in an overstretched federal judiciary.

The challenge is that under the statute enacted by Congress when these federal judges accept this “senior” status, they 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 law professor Ryan Scott and David Stras, a former law clerk to Justice Clarence Thomas, law professor and now a justice of the Minnesota Supreme Court.

According to the Federal Judicial Center, “senior” judges are responsible for 21.9 percent 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 continues 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 a circuit court of appeals has de facto overruled an on-point U.S. Supreme Court precedent.

The words “Equal Justice Under Law” adorns the U.S. Supreme Court  building, but 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 Appeals covered your state.

Thus, undermining this maxim of law for the American people.

Stephen Wyse is a Columbia attorney and a member of the Bar of the U.S. Supreme Court.


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