But Sotomayor was obviously wrong on the New Haven decision, because the city had refused to follow its own stated rules and standards for giving promotions. Which I think is a much weaker civil rights case than saying that the defined process itself was designed to produce racial inequality.

If I hear one more conservative accuse liberal judges of being “judicial activists,” I may well go ballistic and start spewing diet Coke out of my nose right here at work. Over the past thirty years, far more judicial activism has been perpetrated by conservative Republican judges who want to pull the teeth from our laws against discrimination and monopolies than any liberal ever thought about doing in the past.

There once was a time when the antitrust laws were interpreted, as David so naively says, “as they were written.” And that led to the big corporations (monopolists, in the lingo of antitrust law) lobbying Republican politicians to appoint judges who would add requirements to the law not set out in the text. And they did, to the point where the antitrust laws have effectively been eaten up by judge-made exceptions. These antitrust laws were passed by a Congress which was elected by the people, and de-clawed by appointed judges who ruled just as the big companies who appointed them wanted them to do.

Ditto the civil rights and anti-discrimination laws. These laws are very simple, most of them less than a paragraph long. They have no qualifiers in them. And yet conservative judges, people who would walk a mile over broken glass to strike down a free lunch program somewhere, have added qualification after qualification. The result is that in most states, including Kentucky, it is nearly impossible to prove a civil case alleging employment discrimination.

And that’s not even the worst thing they’ve done. Legal scholars have typically treated the procedural rules that govern cases as being “neutral” in nature, that is, the rules of the game are generally considered fair to all players. No more. The first assault on plaintiffs’ rights was the so-called trilogy of cases (Matsushita, Liberty Lobby, and Celotex) decided by the US Supreme Court in 1986, during the Reagan Revolution, which made it far easier for a Federal court to issue a summary judgment, that is, to dismiss a case without even a trial. This standard was considered so unjust by so many people that the Kentucky Supreme Court, interpreting a Kentucky rule having EXACTLY the same language as that of the Federal rule, expressly rejected the Federal approach for Kentucky state courts. Since then, probably 80-90% of the cases filed in Federal court in Kentucky for discrimination, antitrust, and the like have been dismissed on motions for summary judgment, without a trial.

And as if that weren’t bad enough, the Supremes have now gone even farther. In Ashcroft v. Iqbal, a ruling in a terrorism case so stealthy that it has received little or no attention for its procedural holding, has made it even easier, in that now, a Federal judge can dismiss a case simply because he thinks that the allegations in the complaint are “not plausible,” a standard that, for the past seventy years, had applied only to things that really were implausible. Now, the case has been cited over 500 times since it was decided this spring, and judges are using it to dismiss all manner of cases that otherwise would at least have gotten to the summary judgment stage. This is very important, because only when cases are allowed to proceed to the stage where “discovery” is conducted, that is, documents exchanged and witnesses questioned under oath, that any real evidence produced. If a case is dismissed prior to that point, no one (including the judge) knows what the facts really are. Now, all the judge has to say is that, based solely on one document, the initiating complaint, he doesn’t believe the allegations, and the case can be dismissed as “implausible.”

As the NYTimes has said:

“In his dissent in Iqbal, Justice Souter wrote that judges should accept the accusations in a complaint as true ‘no matter how skeptical the court may be.’

‘The sole exception to this rule,’ Justice Souter continued, ‘lies with allegations that are sufficiently fantastic to defy reality as we know it: claims about little green men, or the plaintiff’s recent trip to Pluto, or experiences in time travel.’

But that is no longer the law. Under the Iqbal decision, federal judges will now decide at the very start of a litigation whether the plaintiff’s accusations ring true, and they will close the courthouse door if they do not.”

This is hardly interpreting the law “as written.” In fact, this may be the most blatant violation of the rights of ordinary citizens ever perpetrated by the Federal judiciary, and that’s going some. And, David, this is being perpetrated by conservative judges who always seem to rule in favor of large corporations and insurance companies.

Many lawsuits that appear implausible when filed turn out to be absolutely true. When the Ron Berry lawsuit was filed in Lexington ten years ago, lots of people found it implausible that high officials of the local government would cover up pedophilia. Everyone believes it now. When the first Catholic sex abuse cases were filed, many people found it implausible that high officials of the Catholic church would cover up pedophilia. Everyone believes it now. Ditto the Fayette County Board of Education in the Maner case, which has been mentioned on this blog.

And here’s the thing, David. The worst enemy of conservative jurisprudence is the jury trial. Lawyers love to strut around and use sesquipedalian words that no one understands and justify the actions of their clients with technical arguments that sound fine in expensively furnished board rooms, but that would evoke howls of laughter in the average barber shop. And the jury trial is that barber shop: It is one of the few forms of democracy left to us, the ability to believe and disbelieve people as our hearts and minds dictate. And they want to take that right away from us. I was re-reading the Declaration of Independence the other day, because someone gave me a little booklet with it and the Constitution in it. One of the reasons we broke from the British was their interference in our right to a trial by jury. Maybe we need another revolution today against the bought and paid for Federal judiciary.

Unless of course it’s the Supreme Court, whose job it is to create new precedents for other judges to follow.

Also, and perhaps unfortunately, “interpreting laws as they are written” leaves lots of leeway for judicial interpretation, since most laws are not written without massive ambiguities and loopholes which require judicial interpretation to fill in.