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GUEST COMMENTARY: Supreme Court not upholding equal justice under law

Monday, February 20, 2012 | 3:21 p.m. CST; updated 8:14 p.m. CST, Monday, February 20, 2012

Tammy Sutherland believed that a state law that declared 911 calls confidential if they didn't result in criminal charges meant what it said. So she believed the law would protect a recorded call from years earlier about her husband shooting a family computer as private and further believed that a federal law that prevented disclosure of her driving records would permit her to hold her husband's political opponents accountable for violating these privacy protections. In addition, that a "senior" judge would answer the challenge as to whether he maintained the Article III jurisdiction to hear her case. Recently the Supreme Court of the United States refused to hear an appeal from the 8th Circuit in her case, Sutherland v. Massa.

In Sutherland, the lower court decided that these records were not of an "intimate" enough nature to earn a "constitutional" right to privacy. This act of inaction is just the latest example of de facto Avoidance Doctrine that has emerged in the Supreme Court. Under this doctrine the highest court in the land continues to permit lower courts to ignore congressionally enacted statutes and even on-point Supreme Court precedents. The result is a disjointed system of federal law that undermines basic American legal principles and equal justice for everyone.

If a federal law is upheld by the Supreme Court, the ruling should have equal effect in every part of the country. That has increasingly not been the case. Instead there is a disunity in the application of federal law by rogue federal circuit courts of appeal that ignore on-point, controlling Supreme Court precedents. And the Supreme Court, vested with the nearly absolute discretion in what cases it hears, has been unwilling to protect its precedents. The 8th Circuit has been a consistent repeat offender.

In 1994, after stalkers had repeatedly used public drivers’ records to stalk and kill several women, Congress passed the Drivers Privacy Protection Act (DPPA) that protected driving records from public disclosure without a legitimate reason. The Supreme Court, in Reno v. Condon, upheld Congress’s power to declare certain driving records private.

Instead an 8th Circuit Court in Sutherland v. Massa, ignored Congress’s privacy determinations and gave no deference to the statutory right to privacy declared by Congress for driving records in the DPPA, and by the state of Missouri over 911 records. This ruling excused the political opponents of Sutherland for violating statutory law and wrongfully accessing his wife's driving and 911 records, because it determined that these records were not of a sufficiently "intimate" nature to warrant constitutional privacy protections.

Outside the 8th Circuit, it is one of the basic precepts of federal law that legislative determinations made by Congress, if within its constitutional authority, are to be given deference as the controlling law.

Ignoring Congress and de facto violations of Supreme Court precedents are not the only issues the court should be concerned about, though. Sutherland v. Massa was the third time this Supreme Court has run from its obligation to declare whether more than one fifth of federal appellate work is being done unconstitutionally by "Senior" judges. They've also ignored the question of whether a circuit "Senior" judge whose constitutional authority to keep his job was challenged can ignore that challenge and rule against the party who raised the challenge without an appearance of a conflict existing.

In Coates v. Powell there was also constitutional challenge to federal "Senior" or semi-retired judges. 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 David Stras, a former law clerk to Justice Clarence Thomas and law professor and now a Justice of the Minnesota Supreme Court, and law professor Ryan Scott.

Despite these questions, 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 continued operation of the federal courts in question.

Instead the Supreme Court has defended the senior judge’s role in federal courts. In Chief Justice John Roberts’ 2010 report on the federal judiciary he said, "We would be in dire straits without their service," noting the critical function these judges play in an over stretched federal judiciary. According to the Federal Judicial Center, "Senior" judges are responsible for 21.9 percent of the federal appellate caseload.

With the Supreme Court failing to protect its own precedents and maintain the uniformity of federal law across the nation, the principle of equal justice under the law is undermined. This legal cancer permits certain rogue federal circuit courts to deny citizens the rights enjoyed by other American citizens and undermines the integrity of the federal judiciary. By ignoring challenges to the constitutional authority of “Senior” federal judges to hear Article III cases, it furthers the corrosion of federal legitimacy. It is time for Congress to re-impose mandatory case review where federal law is being applied differently in the different federal circuits. "Equal Justice Under Law" should more than adorn the Supreme Court building. It must be the right of every American citizen throughout this country, and repeated failure of the Supreme Court to uniformly uphold federal law requires congressional action now.

Stephen Wyse is a Columbia attorney and represents Jeff and Tammy Sutherland. He is also a member of bar for the U. S. Supreme Court.


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