Santa Gave Himself A Present: Judicial Immunity *

Federal Courts Must Reform or Risk Collapse

Program for: Judicial Ethics Investigations (JEI)

27 min readSep 8, 2023

* 𝐑𝐞𝐜𝐨𝐦𝐦𝐞𝐧𝐝𝐞𝐝 𝐜𝐢𝐭𝐚𝐭𝐢𝐨𝐧: R.J. Bʀᴏɴɴᴇʀ, 𝘚𝘢𝘯𝘵𝘢 𝘎𝘢𝘷𝘦 𝘏𝘪𝘮𝘴𝘦𝘭𝘧 𝘢 𝘗𝘳𝘦𝘴𝘦𝘯𝘵: 𝘑𝘶𝘥𝘪𝘤𝘪𝘢𝘭 𝘐𝘮𝘮𝘶𝘯𝘪𝘵𝘺 (a simplified explanation for the general public) (2022).

The U.S. Constitution gives us fundamental rights. It is the message our Constitution conveys.

And that is also what we have been told in many decisions of the U.S. Supreme Court.

But rights never enforce themselves — they require honest and ethical judges.

Our modern Supreme Court long has been in the business of issuing opinions — many — that basically state that the general public must be prevented from receiving federal trials or full hearings aimed at showing that fundamental rights were stolen away.

The excuses are many.

The excuses appear in various wrappers and reasons.

The justifications given by the Supreme Court are not only inconsistent with older decisions, they often are internally inconsistent.

In the famous U.S. Supreme Court case of Marbury v. Madison from the 1800s — the decision that settled the U.S. Supreme Court’s power of judicial review, Chief Justice John Marshall stated that, ‘for every right, there must be a remedy.’ He called it a ‘crime’ and a betrayal of the U.S. Constitution to to do otherwise.

The situation we have today can easily lead to serious national security problem in the long term as federal courts continue to create legitimacy problems for themselves in the court of public opinion. Something must be done to fix it.

Stolen Rights

Every day local judges and juries hear whether protected liberties have been stolen in criminal cases.

“Stolen” is a good word to describe the problem.

FOR EXAMPLE:

1. The crimes of kidnapping and hostage-taking essentially are thefts of the constitutional rights of freedom of association and freedom of movement;
2. Crimes like arson and burglary are thefts of property, protected constitutional items;
3. Murder is theft of all personal liberties; and so forth.

It therefore is nonsensical (and dishonest) to suggest the same judges, and the same juries, that are capable of deciding whether fundamental rights were stolen away in criminal cases (legal proceedings that use a more demanding burden of proof) somehow are unable to decide the same types of issues in civil cases that use a lower burden of proof, or to do so when a judge is the accused wrongdoer.

The only reason to have such a system is to protect the wrongdoer when the wrongdoer is a government official.

There can be no other rational justification: There certainly exists no cogent constitutional or legislative justification.

“A right without a serious enforcement mechanism is not a right: It is a lie. It is corrupt abuse of authority at its worst.”

A casual observer might believe the quote above is misguided idealism, but it is the standard articulated by the U.S. Supreme Court in the very case from the 1800s that established the authority of the Court to engage in judicial review. In other words, it is the highest law of the land on paper even if not in practice.

Nowhere in our Constitution does it say that government officials are protected by rules of immunity if they thieve and run-off with our rights — it says exactly the opposite: The U.S. Constitution says such schemes are impermissible. That’s why we have a Bill of Rights. Early Supreme Court opinions called thieving fundamental rights “crimes.”

The Bill of Rights are rights created against government officials — they are not rights to shield government officials from accusations of thievery.

The Bill of Rights describes the things that government cannot do — not what government is allowed to do.

Government Corruption: A Problem That Never Seems to Go Away

Any system that fabricates protections for corrupt abuses of official authority is a lawless one.

It is inconsistent with any notion of equal or even-handed justice.

It is a lords-and-peasants system.

It is plantation justice (some live in the house; some in the field) — a timeless story that makes a mockery of “equal justice under law.”

North Korea has such a system. The North Korean Constitution protects speech and freedom of association, but there are no real enforcement mechanisms.

North Korea’s officials also pay lip service to fundamental rights while impeding real enforcement mechanisms — it is exactly the same system that our modern-day Supreme Court and many federal courts use and promote. It not only is unsustainable; it is un-American in the truest sense.

Instead of federal courts consistently coming up with excuses for why ordinary people cannot secure rights against misbehaving government officials, the courts should be clear in stating how the people can secure their rights. Otherwise why do courts even need to rule a fundamental right exists if there is no easy way to access or even comprehend the remedy for a violation of rights by ordinary people?

“A basic right must be accessible to rich and poor alike if the legal system that promotes the existence of those rights seeks to be seen as a legitimate one. Otherwise the system is a cruel mockery of the historical understanding of what constitute legitimate laws and standards of ethics.”

Bring back the King?

If our federal courts continue in the manner that they have, we might as well just bring back the king and let him eat his bon-bons on the throne and decide according to whatever his mood is that day.

The treatment of civil rights and civil liberties by courts has become so atrocious and arbitrary that rule-by-monarch— even a lazy and self-dealing one — surely might generate more genuine civil rights protections. That’s how bad it’s gotten.

Federal courts have undermined their own legitimacy. The very reason our Nation was created — to create a Nation of laws, and not of personalities, and to provide easy to access remedies for abuses of official authority — gets very little genuine respect by courts these days and when it does it is always subservient to a higher law: Protecting those in positions of trust that abuse their authority.

Your Car and your Television Set

If a legal right has any genuine value, the law must provide fair, efficient, and timely remedies for securing the legal right.

There will always be some cases that are more complicated than others that require more time and effort, but as a general rule justice delayed is justice denied.

This is my buddy, Laurence Tribe, one of the best constitutional lawyers of all time. Over the course of about fifty years he appeared thirty-something times before the U.S. Supreme Court and trained several Supreme Court judges (and me).

If in 50 years, Larry only got before the Supreme Court about thirty times, your chances of getting before that court are probably slim to none. It is really the lower courts that handle the bulk of the work and usually there is little oversight to make sure they are being faithful in following standards of ethics and respect for basic rights.

For law to work, there generally must be a quick, easy-to-comprehend, and easily enforceable remedy. Not everyone can hired famed Harvard Law professor Larry Tribe! Easy access to courtrooms and fair justice are indispensable when a right is in jeopardy and promised to the general population by the U.S. Constitution. But when bad judges know you do not have many avenues to challenge their behavior, they basically have a form of amnesty for criminal behavior. Of course, you can hope for the U.S. Attorney General to step in and help, but that also never happens. The Attorney General is even busier than Larry Tribe.

I want you to imagine a car or T.V. that you own.

You have a right to that car. If one day you find a complete stranger sitting in the driver’s seat of your car that you saved up your hard-earned money to buy and the stranger claims it is his car, you can show a government official (usually the police or a judge) your ownership or registration papers, and the right to the car is promptly restored back to you. So, why isn’t this also the case with free speech or basic due process when those rights are stolen away?

“If government quickly is able to discern whether a car or a television was stolen from someone, why not when the theft is of a basic constitutional right?”

Frankly, in almost all cases it is far harder to determine the true ownership of a television or a car than who owns the right to due process, free speech, or freedom of association. The same T.V. set can be owned by many people — it can change hands many times; innocent people might buy it not knowing the T.V. was stolen. There are many potential complexities. However, constitutional rights are always personal to the individual — there generally are few ‘proof problems’ regarding true ownership.

What the U.S. Supreme Court and the lower federal courts have done is to close their doors to almost everyone who claims the violation of a basic constitutional rights. As soon as you file a civil rights case, usually the case is thrown out. That is not justice — it is aiding and abetting and concealment of civil rights violations. It is an ugly and dangerous practice particularly given that public officials are masters of concealment and access to real court procedures is always required to develop a case so you can prove-up your claims.

A cookie?

A related and common problem that judges have gotten into the habit of is to offer-up rights as gifts — like gourmet cookies a host might offer at a V.I.P. party. At such an event tasty morsels are handed out to V.I.P. guests the host likes or identifies with. But when done in that manner in the realm of judicial behavior, those aren’t legal rights that have been handed out: When done in that manner, those are gifts.

A true right is something that already belongs to a person. The law gave you a right before you entered any courtroom or it didn’t. For any judge to hand out rights like they are gifts — in a discriminatory or arbitrary fashion — is one of the worst forms of abusing judicial authority. It is the true embodiment of bias and a lack of impartial justice. It is also one of the most common things that goes on in courts today and something few judges seem to be concerned about.

Of course, there are cases that established the principle that the ‘cookie approach’ violates the law: For example, in an early equal protection case —Yick Wo v. Hopkins, 118 U.S. 356 (1886) — two Chinese immigrants (Lee Yick and Wo Lee) challenged the discriminatory application of a laundry law because the City of San Francisco had a law that required laundries to be in brick buildings. The city used that law to primarily target Chinese immigrants in wooden building with violations. That is, the law was wielded as a pretext for discriminatory treatment. The Supreme Court ruled that though the law was inoffensive on its face, it was being used as a tool of unequal treatment. Apparently today’s judges believe the lack of even-handed application of the law has been fixed because we rarely hear about these types of cases from the courts.

It might be fair to say Yick and Wo would not have a chance of getting before the U.S. Supreme Court today (or the lower federal courts), and it is doubtful nine judges would champion their cause. Somehow the high Court had an easy time deciding a case about uneven application of the law in the late 1800s, but seems to have forgotten how to do that today.

So, now you might understand why some people want to sue judges!

Judicial Immunity: What is it?

The doctrine of Judicial Immunity, which is based on paying tribute to the King, is a lawless absurdity. All apologies to the man we used to call ‘Prince Charles’ (now the King of England). It is doubtful Charles would feel insulted if we sued that judge.

1- The U.S. Constitution says nothing about “judicial immunity” or “qualified immunity” (a type of immunity used for lower ranking government officials). “Immunity” means the sued official does not even have to sit through a case — they are almost always protected from the day the case is filed.

Qualified immunity is a way to shield government defendants from lawsuits when a court rules they were acting “in good faith or in legally murky areas.” If you find these concepts in the U.S. Constitution, let me know: They aren’t there. And, of course, they almost always are interpreted in a way that protects bad officials.

2- The text of the Civil Rights Act (42 U.S.C. Section 1983) grants remedies for abuse of constitutional rights and it says nothing about judicial immunity” or “qualified immunity.”

3- The text of the Civil Rights Act says “Every person” who violates constitutional rights through an official government function may be held liable in a civil lawsuit.

4- The legislative history of the Civil Rights Act shows the sponsors of the law overtly offered the Bill as a means for suing lawless judges — those who opposed the law, did so on exactly because of that feature: They lost and the Bill became Law. The legislative record exists, much in the same manner the legislative record exists regarding the first impeachment of President Trump: Some were for, and some were against, using the phone call to Ukraine to impeach the President; just as some were for and some were against enacting a statute that allowed judges to be sued.

This is what our current Supreme Court recently stated,

“We have been asked before to narrow the scope of [of the civil rights act] to read ‘laws’ to mean only ‘civil rights or equal protection laws.’ … We declined to do so, reasoning that a straightforward reading of the ‘plain language’ of § 1983 is required. That should have been no surprise; Congress attached no modifiers to the phrase ‘and laws’.”
— Marion County v. Talevski, U.S. Supreme Court.

If “laws” means “laws” then “every person” also means “every person” — just as “dog” means “dog’” and “cat” means “cat.”

The Civil Rights Act also says “every person … shall be liable.” The last time I checked, “EVERY person” also meant the same thing in the 1870s as it does today. Is a judge not a person? (Don’t answer that unless we first get rid of judicial immunity!).

So, we are either going to pretend that Congress — an institution that buys ink by the barrel — ran out of ink when it wanted to write “every person [EXCEPT JUDGES]” or we have to believe that Congress wanted judges to be liable for corrupt or malicious deprivations of constitutional rights. The Civil Rights Act was, in fact, created to stop corrupt judges.

Is that what happened in Congress? Let us be honest folks. The Civil Rights Act was a cause of action to sue judges. State judges were in league with organized crime and groups like the Ku Klux Klan, which rendered enforcement of constitutional rights a problem, so Congress created a cause of action against judges and other officials.

“Dear Santa ….”

“Every person” means “every person”… every single corrupt one — even judges.

So, who gave judges a right to immunity? Judges gave judges that right ! Or maybe Santa gave them that right.

So, Santa gave himself a present — that’s usually called ‘public corruption,’ ‘abuse of official authority,’ or ‘self-dealing.’

And Santa gave himself the best present— one with a value in billions of dollars.

For judicial immunity to be a legitimate means of stopping civil rights lawsuits, the concept must be clearly stated in the Civil Rights Act, or the judges who say otherwise inherently are corrupt because they have personal, direct, and vested financial interests in pretending it is part of the law because it puts many billions of dollars into their own pockets. That goes against the concept of impartial justice.

One must never be a judge in a case where he or she has a direct financial stake or a judge in his or her own cause: These are staple rules of constitutional law and common ethics.

Judges and their mugshots: What judges fear. Being hauled into court like any other person.

In cases where the criminal law caught up with judges, what was the result?

Did ‘the Republic collapse’?
Did the courts ‘fail to function’?
Did we run out of judges?

All that happened is more qualified applicants for judicial assignments took over — just like any other profession where people are subjected to rules of responsibility.

If we allow judges to be liable for malicious, deliberate, or corrupt deprivations of civil rights, what would happen?

Our legal system would get better!

Judges would be forced to give reasoned decisions, use court records, rely on facts and evidence and it would still leave room for innocent or negligent judges to make normal legal errors reviewable on appeal without being hauled into court.

Instead what have today is a robed-crime-syndicate just as the Framers of the Constitution and the authors of the Fourteenth Amendment and the Civil Rights Act feared. Not only did we fail to free segregated people of color; we turned our constitutional system into the laws of the plantation and put millions of people at risk. We got rid of one king, and created thousands of others: Judges!

Bad judges use judicial immunity as an anti-competitive device to maintain gross incompetence and corruption on state benches — civil lawsuits should be allowed to expose truly horrendous judges. (Judicial ethics commissions and prosecutors won’t do it; because they largely are in league with whomever sits on our benches. The U.S. Department of justice similarly does not have the time, inclination, or resources to tackle the problem.)

“Would you fly with an airline if it allowed its pilots to completely avoid lawsuits for deliberate, reckless, or corrupt activity?
Then why do you feel safe stepping into a court that protects corrupt judges? It’s just as dangerous, if not more so.
At least in the airplane, the pilot is in there with you. What he does to you, he generally does to himself, but that’s not true in a court.”

A noble judge speaks.

Justice Douglas was right. It is why he was one of the greatest to ever wear a robe. History will remember him long after it has forgotten legions of other judges.

Judges who genuinely respect constitutional law do not need to prefabricate an instrumentality of crime to protect deliberate, reckless or corrupt misconduct.

The U.S Supreme Court had to craft a justification for rules that shield corrupt judges and they pretended to do the based on “the common law.”

The accoutrements of “the common law” — torture devices for extracting confessions and punishing those who defamed the king, engaged in sorcery, or violated prohibitions that no sane person would take seriously today.

The common law (old court decisions from England and the colonies) cannot negate U.S. constitutional rights. The U.S. Constitution is America’s highest legal authority — England’s highest authority was the king. We are a Nation of laws, not of personalities.

Nevertheless, common law is an important source of law for illuminating rights in our Constitution, but common law also contains a wide range of nonsense that no one would never accept today (e.g., putting people on trial for witchcraft, boiling people alive; amputating body parts; drowning people; and other horrific and unscientific practices no sane person would accept today). So, there’s good common law and bad common law.

In one sense it is true that common law permits judicial immunity because common law permitted an array of corrupt activity. Nevertheless, simply saying “the common law” allowed something is no answer at all to the issue of creating a privileged class of criminals in our courts. Only the valuable portions of common law that illuminate constitutional rights are the significant portions — otherwise, we should be clear: A lot of common law looks like the Taliban’s code of justice.

Common law contains gold and it contains waste: A good judge knows how to separate the pebbles from the prize. Few judges, however, are trained in the history of common law traditions and practices.

It should be noted that was also no such thing as the common law — there were many common law decisions. I have never seen our U.S. Supreme Court seek to categorize common law decisions in evaluating the need for judicial immunity. There is a reason for that: They faked their knowledge of common law rules when writing U.S. Supreme Court opinions protecting judges.

I am an expert in the history of British and colonial common law. I will provide examples.

How judicial immunity worked at common law:

The king delegated power to his judges. The king was busy drinking his wine, frolicking with maidens, collecting wealth, making ceremonial appearances, inspecting his stables, exacting revenge on jealous ‘Lords of the Manor’ and dealing with disgruntled peasants. The guy was busy! So, the king chose special judges to handle a lot of day-to-day issues and he protected those close to him. That small group of judges could not be sued because the king might feel insulted if his special group of judges were accused of wrongdoing. Let’s restate it: That was a tool for the king to maintain his grip on power in the event his officers did bad things and someone wanted to sue.

It shouldn’t be difficult to understand why royals needed ‘special’ judges: They were busy doing ‘things’ and they had a privileged lifestyle to protect.

“[T]he King himself is …to deliver justice to all his subjects; and for this, that he himself cannot do it to all persons, he delegates his power to his Judges . . . .”
Floyd & Barker, 12 Co. Rep. 23, 25, 77 Eng. Rep. 1305, 1307 (1608).

Let’s translate it: The king was busy with self-indulgent activity and other matters so he allowed his closest friends (who were junior partners in accumulating wealth) to carry-out judicial functions.

Since the King could do no wrong, his special judges (his delegates for dispensing justice) “ought not to be drawn into question for any supposed corruption [for this tends] to the slander of the justice of the King.” [Floyd & Barker, 12 Co.Rep. 23, 25, 77 Eng.Rep. 1305, 1307 (Star Chamber 1608).]

The theory was that because some judges were the personal delegates of the king, they should be answerable to the king alone. The reality is the king wanted to maintain a grip on power and handpicked judges who maintained the king’s monopoly on power (and their own stake in the venture). Not all judges were in this ‘special’ category — in fact, most weren’t!

The meaning of a “Court of Record.”

This was a special and unique name given to a limited number of judges who were close associates of the king and afforded immunity: Basically, they were the king’s closest friends.

“Impugning the integrity of the record verged on impugning the integrity of the monarch.”
Jay M. Feinman & Roy S. Cohen, Suing Judges: History and Theory, 31 S.C. L. Rev. 201 (1980) at p. 8 (“Feinman & Cohen”).
“The special status of the record of a court of record had its origin in the royal assertion that the King’s word on events that had taken place in his presence was indisputable. When this privilege was extended from the King to his judges, the court of record was born and the foundation for limited judicial immunity was set. Since the record of the court was incontrovertible, no party could allege that an act noted therein was wrong, and thus the source of the record — the judge — could not be subject to civil or criminal liability for an abuse of power.
(Feinman & Cohen, at p. 6.).

Don’t be confused: I’ll explain it.

The thing we call “judicial immunity” was designed to prevent appeals from decisions made by the king’s best buddies (his special judges). Immunity shielded the king’s corrupt bedfellows from any kind of legal challenge. During one era of common law, the only way you could appeal was by suing judges. That’s how appeals worked then!

The English principle our Supreme Court relies on is not only about judicial immunity — it is a prohibition against appeals because even appeals from the decisions of certain (‘special’) judges would be counted as an insult to the king!

Really!

It gets worse!

The United States Supreme Court is a court of appellate jurisdiction — if this English rule is part of the fabric of American law — as the U.S. Supreme Court has stated it is— the only conclusion is that almost every case handled by our Supreme Court has been without proper jurisdiction because the immunity granted at common law was to block appellate review. Don’t forget: Appeals were an insult to the king! That’s the basis for judicial immunity.

In England lower judicial officers were treated much differently than the tiny class of higher judges (the king’s special friends) who were only to be answerable to the king (or God). Kings often ruled by divine right (as God’s chosen representative on earth). The absolute immunity for a a tiny handful of “high judicial officers” in England was established because of their close ties to the crown. Today we would call that a “mafia system.”

So, let us be clear what the rule of immunity was at common law:

The real common law tradition of judicial immunity.

What should be clear is that judicial immunity was never absolute at common law!

We have another problem.

We do not permit kings or queens in America. So, the idea that we have a rule to protect the king is completely bizarre.

Our separation from England and our Constitution were the ultimate insult to the king — so much for the “king’s honour”!

October 26, 1775, King George III spoke before both houses of the British Parliament to discuss growing concern about the rebellion in America, which he described as treason against himself and England. So, we don’t have to worry about upsetting George III because we already did that. When you fight a war against a king — and every single one of his officials — it is safe to call that an unequivocal rejection of immunity.

We won — or so we thought — and we created ‘a system of laws, not one of men,’ or so we thought.

In our system, no man or woman was supposed to be above the law or set the law at defiance with impunity.

So, judicial immunity — except, perhaps, for tiny handful of high-ranking judges in England — started off as a farce and the farce kept getting bigger and bigger. Of course! Every judge wanted this ultimate power — they were like an addict looking for more of the same drug until the exception swallowed the original rule.

Astonishingly, judicial immunity has reached its high water-mark in America — the place that supposedly separated itself from rule by corrupt autocrat. To be fair, the UK judiciary also has the same problem today.

As I show below, it is complete nonsense that judges were completely immune from lawsuits during the colonial and common law eras:

“In earliest English law not only was immunity of judges not recognized, but review of judicial decisions was in the form of a personal action against the judge.”
Feinman & Cohen, citing 2 F. POLLOCK & F. MAITLAND, THE HISTORY OF ENGLISH LAW 668 (2d ed. 1899) (“The idea of a complaint against a judgment which is not an accusation against a judge is not easily formed.”).

What does that mean? It means the way you appealed during on era of English common law was to sue the judge. As I pointed out, that’s how appeals worked then. The cause of action generally was referred to as trespass against rights. [See also, Houlden v. Smith, 117 Eng. Rep. 3 2 3 (Queen’s Bench 1850) (County judge held liable in trespass for assuming jurisdiction over man in adjoining county).]

When the English courts use the word “jurisdiction” they also mean “venue” and they also meant flagrant misapplication of law.

Whippin’ The Colored Folks in America.

Below we will see that it is a distortion of American history to suggest all American courts accepted judicial immunity the way it is represented today. Judicial immunity also did not universally mean what courts today says it meant.

The example below is from the case of Ely v. Thompson, 10 Ky. 70, 3 A.K. Marsh. 70 (1820). Many older judicial records were destroyed, but the great state of Kentucky managed to preserve many of theirs.

American common law: And the colonial era.

Under the statute below a free Black man was seized and whipped by a local judge and an officer — they were acting in judicial and law enforcement capacities:

THE KENTUCKY STATUTE:
“If any negro or mulatto, or Indian, bond or free, shall, at any time, lift his or her hand in opposition to any person not being a negro, mulatto or Indian, he or she, so offending, shall, for every such offence, proved by the oath of the party, before a justice of the peace of the county where such offence shall be committed, receive thirty lashes on his or her bare back, well laid on by Order of such justice.”

The court said:

“This is an action of trespass, assault, battery and imprisonment, brought by a free person of color, against a justice of the peace [the judge] and constable [the police officer], in their individual characters.”
“It is contended [by the man who was whipped] … that this section of this statute is repealed. . . . And if it is not repealed, that it is contrary to the constitution of this state, and therefore void; and that in either case the justice or constable could not justify under it.”
“It is very true, that a judicial officer cannot be punished for errors in judgment, on subjects within the scope of his authority, and over which he has jurisdiction. But this does not hold good when he attempts to exercise authority when he has none.”
“The judgment of the court below must, therefore reversed ….”
Ely v. Thompson, 10 Ky. 70, 3 A.K. Marsh. 70 (1820).
[The judge and the officer were allowed to be sued in a new trial and the plaintiff was awarded costs.]

In other words, the court equated blatantly illegal activity by the local judge and a police officer as constituting a lack of jurisdiction. That is not how courts use the word “jurisdiction” today. The case uses the word “jurisdiction” — like English cases — to mean ‘flagrant disregard of the law.’

The court above does not say so explicitly, but what the court seems to be saying is that good knowledge of the law is required of judges and — when the case concerns basic civil rights— a judge may not disregard bench duties, must remain informed about important changes in the law, and must not feign ignorance of basic rights. The court’s holding makes that clear.

The court allowed that judge to be sued; in Kentucky; in 1820!
Our modern Supreme Court would never allow it.

That principle was similar one our Supreme Court stated in Ex parte Young, 209 U.S. 123 (1908). In other words, our modern Supreme Court has taken us back to the dark ages of slavery:

Ex parte Young teaches that when a state officer acts under a state law in a manner violative of the Federal Constitution the official,

“… comes into conflict with the superior authority of that Constitution, and he is in that case stripped of his official or representative character and is subjected in his person to the consequences of his individual conduct. The State has no power to impart to him any immunity from responsibility to the supreme authority of the United States.”
Id., at 159–160. (Emphasis supplied.)

Was our Supreme Court just making that up? No. The case is an old one and embodies nearly the exact principle of the Kentucky common law case: An official who acts in flagrant disregard of the law is “stripped of his official … character” and the state has “no power to impart to him any immunity.” The point here is not that cases of judicial immunity do not exist (of course they do); the point is that the historical record does not justify absolute judicial immunity in every instance — it was not the practice at common law.

U.S. law is based on English law, but the King’s Chief Justice agrees with me — these are his notes (in composite form to permit them to appear on one page). The fair translation is this: ‘A party has no direct remedy against a court or a judge if the judge made an error, but only if there was no corruption and it was a genuine error.’ Clearly, the story we were told by our courts is more nuanced than we were led to believe.

So, at common law certain civil damages suits and equitable remedies against judges were allowed. Under English common law, only the judges that were the king’s closest buddies were afforded absolute immunity. During the colonial era, the founders of our Nation had one manifest desire: To put the king’s judges on trial for civil damages and criminal misconduct.

Now let us see what the law is today.

**This is what our modern U.S. Supreme Court says is the law: ‘A judge shall be free to act without personal consequences.’**

“[I]t is … of the highest importance … that a judicial officer, in exercising the authority vested in him, shall be free to act upon his own convictions, without apprehension of personal consequences.”
Judge Mireless v. Attorney Howard Waco (U.S. Supreme Court 1991).

This is a real case: It is Mireless v. Waco; a California judge actually did this not too long ago.

In the Mireless v. Waco case a lawyer was delayed from appearing in a certain courtroom because he was delayed in “another courtroom where he was waiting to appear.” That happens sometimes. A judge of the California Superior Court became irate and ordered sherriffs deputies “to forcibly and with excessive force seize and bring [the lawyer] into his courtroom.” The judge basically instructed law enforcement to beat up the lawyer, throw him around, humiliate him in front of people attending court, and drag him into his courtroom. The lawyer simply had been delayed by another judge in another department of the court.

Mutilating Linda: ‘Carve her up,’ said the Judge.

Stump v. Sparkman, 435 U.S. 349 (1978), is the leading United States Supreme Court decision on judicial immunity.

A local judge did the following:

(1) Hid the reason a woman was being sent to a surgeon;

(2) Did not provide the woman a hearing;

(3) Did not give her an opportunity to bring in an attorney; and

(4) The judge signed an order allowing the woman to be surgically sterilized.

The woman’s mother simply hired an attorney and held a private meeting with the judge — it is not even clear from the Judge Stump’s order what law he used to base his decision on.

The U.S. Supreme court said it is not a problem and the judge is immune because Judge Stump was ‘acting as a judge’ when he did this.

Note: When a suit against a judge is blocked on immunity grounds we can never really know motivated a judge because fact-finding through discovery procedures and trial are not allowed.

This is Judge Stump.

These are how the Supreme Court Justices voted in Stump v. Sparkman — it is important for people to understand that this type of problem is not based on political affiliation.

MAJORITY: White(D), Burger(R), Blackmun(R), Rehnquist(R), Stevens(R).
DISSENT: Stewart(R), Marshall(D), Powell(D).
RECUSED: Brennan(D) took no part in the decision of the case.

It has occurred to me . . .

It has occurred to me that there are many unhinged local judges — like Judge Stump. Believe me, they exist.

It is not unfair to ask the current U.S. Supreme Court to simply indicate if they would be willing to abide by the rule of judicial immunity if a local judge (acting consistently with the Court’s rulings in Mireless and Stump) decided to adjudicate against them in the following manner:

No notice;
No opportunity to hire a lawyer;
No hearing;
Seize them by force without a hearing or probable cause;
Order the police to use excessive force;
Conduct surgical experimentation on them; and
Refuse to check if the person who asked for ‘state judicial action’ had some ulterior purpose or was even competent to make the request.

“ That precisely is what the two Supreme Court cases above say is an immunized form of judicial activity.
Fair questions deserve fair responses ! ”

Of course, this is only a legal hypothetical, because it would never happen: Federal judges are protected people. They have highly armed men that guard their safety (and we are not encouraging illegal behavior). We simply are noting that we have a lords-and-peasants system: One group is protected from mortal threats, and the peasants are not. But what if it could actually happen, what would the justices’ honest answer be?

That is our real point of inquiry. It’s a fair thought experiment.

So, let’s imagine it:

The Senate confirms a new Supreme Court justice; let’s call him “Justice Jerry” — a newly-minted judge. Almost everyone loves Jerry for his fantastic qualities, except for one jealous person: “Sibling Sam.”

One day Justice Jerry travels to speak at a legal conference at a local college in the city of Mayberry, but on the orders of a “Lawless Lenny” (a local judge in Mayberry) who is friend’s with Jerry’s estranged sibling, Justice Jerry is arrested at the airport by local police, roughed up, and taken to the operating table for judicially ordered surgery.

When Jerry wakes up from the surgery, his colleagues notice that he is not the same judge.

Should Justice Jerry be able to sue the local judge, Lawless Lenny; or Sibling Sam; or the police?
Should Justice Jerry be able to have his case heard even if the agreement between the local judge and his sibling is hard to prove because it was done in secret? In other words, should Jerry be given the chance to prove his case in federal court?

Stump v. Sparkman highlights the surreal nature the Supreme Court — They have allowed local and state judges to engage in the same type of activity we put Hitler’s henchmen on trial for at Nuremberg. And it is safe to presume that they would not accept that type of behavior if done to them.

One day I randomly came across this photo and I thought it was peculiar.

Who would pose for a photo in front of a eugenics plaque? I thought. ‘That is a horrible plaque to take a photo in front of,’ I said to myself.

I then realized that is Linda Sparkman — the woman who was sterilized by Judge Stump.

Note: This article was simplified to try and make the issue accessible for the general public.