The answer to NY Times’ “How to Ensure This Never Happens Again”: by ending Judicial Fraud!

Two Yale professors, Beverly Gage and Emily Bazelon — one teaching history, the other, law, penned an interesting piece in the New York Times, titled “How to Ensure This Never Happens Again” and dedicated to rectifying “weaknesses in our democracy.” It suggests a massive electoral reform. Unfortunately, their plan has a weakness of its own: the authors aim at an entirely wrong target, thus missing the point completely.

Democracy does not work because it does not exist: the public does not — and for that matter cannot — meaningfully participate in governance.

Here is why: suppose one of us hillbillies sees a wrong, and tries to fix it. We are not congressmen, we are not senators, we are not judges, we are not presidents. Nor are we millionaires whose campaign contributions purchase friendship of congressmen, senators, and presidents. Contacting “one’s” congressman and senators helps only so far, only if the matter is very minor. For bigger, systemic issues, all one can do, is either sue to have the court rectify the outrage — or ask journalists to report it, in the hope of enlisting public support, so the resulting outcry would cause congressmen at al fix it.

Unfortunately, in practice neither of those paths works. Journalists publish only what they want to publish — and don’t publish what they don’t want published, no matter how true (NY Times v. Sullivan allows journalists to lie, and Miami Herald v. Tornillo allows them to ignore facts they want ignored). Lawsuits don’t work because of judicial fraud — judges claiming to have a self-given (in Pierson v. Ray) right to act from the bench “maliciously and corruptly,” thus totally eviscerating “due process of the law:” you hire a lawyer who files a lawsuit, only to discover that the judge replaced parties’ argument in the decision with bogus argument of judge’s own concoction so as to decide the case the way he wants to, not the way he has to. Money is spent on lawyers and fees, the wheels of justice spin for a while, but the problem is not solved because your argument is not considered by the judge. Your contribution to governance winds up being nil. The outrage is still there, the insult of injustice added to the injury you tried to rectify.

So what can we do to bring about democracy, to allow a small guy participate in governance in more ways than just filling an election form? Plenty. Put an end to judicial fraud by blocking judges’ ability to adjudicate judges’, rather than parties’, argument. This, after all, is what any interpretation of Constitutionally-granted “due process of the law” demands. Judge’s own, “sua sponte” argument turn judges into parties to the case — something “due process” forbids. It demands that judges recuse themselves when they are parties to the case they adjudicate. Judicial impartiality is paramount, and “sua spontism” that is practiced from the benches day in and day out, makes mockery of it. Put an end to “sua spontism” — and by and large, the problem is solved, the democracy is restored, a hillbilly can add his two cents to governance by fixing illegalities that he notices.

“We the People” are on the receiving end of social wrongs, we are the ones who suffer from them — but are unable to rectify them.. The justice system that merely spins the wheels, producing the “appearance of justice” rather than justice, only exacerbates the problem by engendering cynicism towards “democracy” and “rule of law,” turning them into empty words devoid of substance, by turning people’s participation in governance into a fiction. If wrongs cannot be righted in courts, if “rule of law” does not exist, what’s there left of “democracy”?

Until “sua spontism” is abolished, until judges adjudicate parties’ argument, not judges’, there can be no rule of law, only arbitrary rule of judges, and unresolved grievances will only fester, producing cynicism, discontent, and angst.

To foster democracy, focus less on how we vote, and more to how judges decide cases. Under the present, “sua sponte,” “corrupt and malicious” system, the judging is utterly dishonest. That’s the root of social malaise, changing that is where we should focus our energies.