Judges Have An Unstated Agenda

The most transcendent, mist-enshrouded, bedrock first-principle that guides judges in their work is:  "Be objective.  Have no bias."  Most judges seem to ascribe to this maxim, and believe that they bring objectivity to their work.

In reality, the law itself is not objective nor are the judges.  The price which we have paid for straying so far from the legal ideal has become intolerable to a large and ever-growing pool of Americans.  These are the citizens who have been partially or even utterly ruined by the judicial system, or have had their property or families taken away by it.  It is not a light matter when judges have the power to intrude that deeply into lives, and often on the most flimsy and unreliable of evidence.  It is then that the bias and the agenda of the law are at their most flagrant and visibly destructive.

After appearing before maybe one hundred state and federal judges over nearly twenty years, I believe that few judges operate without either a known or unknown bias. In areas of the law where discretion is the largest part of the judge's work, such as family and juvenile law, the biases interfere with justice on a widespread scale.  Most persons who get entangled in the system, whether intentionally, thinking that justice will be done, or unintentionally, because the system drags them in, find out to their horror that the system is a disaster for everyone who touches it.

Virtually every person who enters a family or juvenile courtroom - whether voluntarily or involuntarily - exits that same court room later with the firm conviction that the system is grossly unfair, and that the judge operates with at least a tacit, if not a downright clear agenda or bias.  Why are litigants across every demographic category, gender, social station and educational level, so universally convinced that the system is utterly ruined?  Because, for the most part, it is true.

Lesson of the Lord High Chancellor

Charles Dickens put the most trenchant comment about these equity-based courts ever uttered into the mouth of a character in his 1852 serialized novel, Bleak House.  As only Dickens can, he mercilessly skewers the pompous be-robed and be-wigged Lord High Chancellor sitting on his bench in the British Court of Chancery, and then offers this advice to potential litigants: "Suffer any wrong to be done to you, rather than go there."

The be-wigged Lord High Chancellor Campbell
(1779-1861), sporting court dress (Harumph)

Nearly every litigant whom I have personally represented, or observed in my sojourns into court, would echo that sentiment.  Nor is it a new belief, as illustrated by Dickens' comment of over 150 years ago.  In fact, Jesus also said, "Settle with your opponents on the way to court", because the system will crush and ruin you.  Rather, this is a universally understood sentiment, reflecting a systematic, long-term failure of the judicial departments of every legal system.  Yet, not one time or in one place, has the system done anything meaningful to remedy the dreadful deficiencies that are so painfully obvious to all those who have been exposed to then since time immemorial.

What is happening here?  Why do courts persist in their same stubborn path, despite widespread recognition that they have failed to serve their constituents?  And, most important, what can be done?

I grit my teeth every year as our own "Lord High Chancellor", the head of the Massachusetts Supreme Judicial Court (pronounced "Cawt" here in Massachusetts) gives her annual address and report on the judiciary to the assembled grandees in the Massachusetts State Legislature.  To hear these fairy tales, one would think that justice is always being done for the lumpen masses, that judges are all noble, good. wise and true, that clerks are helpful, and are being overworked to the point of exhaustion (for that nice six-figure salary), and that the only problem is just not enough money to extend these benefits with even more efficiency.

The lesson of the Lord High Chancellor hasn't gone too far. One ought to suffer any wrong to be done to him or her rather than go to our hallowed halls of justice, either, but no one will admit it.  All is well.  Just give us more money, and it will be even better!

This blog post cannot become a lengthy historical treatise, explicating the historical developments which landed us in the present continuation of a long-term court crisis.  Rather, this post will explain my conclusions and recommendations from long years of courtroom observation, from reading thousands of pages of judges' opinions, and from living through the cases in real time, which involve real people with real problems.  That will likely be more useful than some dry historical treatise.  We know what we have and how we got there.  The real need is to get away from the status quo to something better.


Political Agenda in the Family Court

Judges in family and juvenile courts have the most opportunity to exercise bias and discretion, because they are so-called "courts of equity", like that of the Lord High Chancellor".  That means that they operate with few rules, and give the judges substantial discretion to do what they think is fair.  There are no juries in these courts, and many juvenile courts are even closed to the press and public.  With fewer rules, discretion and wisdom must take the place of rote imposition of legal remedies.  That presents an opportunity for bias and hidden agendas to become the premier factor in guiding judicial decisions.

Fifty years ago, men were favored in family courts, and women were treated shamefully, as though they were not equal.  Now, the pendulum has swung grossly the other way, and women are favored as against men, and the state is favored over both, when it comes to children.  Domestic abuse restraining orders are now given out freely, without adequate due process, to break up with boyfriends, as first strikes in a divorce, or even as a cheap eviction procedure.  Women get the kids most of the time, along with child support and alimony, and fighting for shared parenting puts a man into pariah status.

In the child protective services area, single women with children are most commonly preyed upon by these agencies, the men are ignored altogether, and the kids are routinely kidnapped from fit parents with hardly a reasonable basis to do so.

My shorthand formula for the unstated court bias in these matters, admittedly a reductio ad absurdam, goes like this:

Men are evil abusers;

Women are victims;

Children belong to the state.

The outcome of most matters in family and juvenile court can be predicted using that formula.  Courts have always had a "default" setting which pre-disposes them to enhance state power, or to favor the litigant which most identifies with state power.

The New Fourth Branch of Government

Today, the government has expanded into so many areas which are either explicitly forbidden by our federal and state constitutions (e.g. regulation of campaign finance or of gun ownership), or which are not enumerated in a strictly limited list of powers permitted to the government. (e.g. toilet water limits or rutabaga regulations). 

Because of this massive accretion of power, government has made virtually every interaction between humans, or humans and any other animal, vegetable or mineral, a matter of crushing over-arching regulation and legal jeopardy.  

One of the most significant ways that government has done this, is to create a semi-autonomous fourth branch of government on the federal, state, and local levels, which is a hybrid of the three functions which we have traditionally separated under our constitutional system:  the legislative, executive and judicial branches.  This fourth branch is the Regulation State.  It contains its own legislative function by making up regulations without approval of Congress or state legislatures except in broad terms.  It contains its own executive function, through its "swarms of officers", to use Jefferson's term.  And, it has a court system, which appears to be real, including people in robes, when they are not appointed under Article III of our constitution or their state cognates. 

For example, in the environment area, states and the feds have environmental agencies (i.e. the Environmental Protection Agency) which write wetland laws, and which administer those laws that they write, and then enforce them if landholders do not comply.  They have local and state tribunals like Conservation Commissions, and Departments of Environmental Protection, which issue orders to not use land in accord with their rules.  Non-compliance results in huge fines or land confiscation.  Continued non-compliance lands you - at last - in court.  But, here is the rub.  Judicial review of Fourth Branch proceedings only looks at whether the agency was "rational" in what it did, or whether it obeyed its own unconstitutional regulations, not whether what they did was lawful, fair, constitutional, or with due process. Guess who almost always wins?

The New Crimes

A second major trend is that most laws passed in the last forty years are crimes against the state, not against persons or property, as our laws used to be.  Lawmakers have, in their drafting, bypassed almost all of our traditional notions of fairness and due process, and replaced them with low standards of proof, one-sided hearings, non-judicial tribunals, non-availability of juries, and limited judicial review.  The current crop of laws would have been ruled entirely out of line in days past, since they changed every premise on which our system was originally premised.

Topping it off is a thick veneer of official "immunity" for government employees, which is legalese for not being accountable for most of the depredations which these people commit in the name of the government, as long as they are "discretionary", and within their illicitly obtained jurisdiction.

Sovereign Immunity was a doctrine which protected the King of England from legal process.  The king could do not wrong, so you could not sue him.  That legal doctrine, which now protects government employees from their wrongdoing, may be the most destructive thing we have ever imported from a foreign land.

There Is No Right Or Wrong, Just Arguments


One of the first things that fresh-faced, earnest law students learn in law school is that the system does not believe in right or wrong, only in arguments.  Whose argument is best.  "Right" and "wrong" are concepts for moralists, not jurists.  The law changes with the needs of the people, and shifts with the times.  This collections of relativistic principles is called "legal realism", and became part of our system through figures such as Supreme Court Justice Oliver Wendall Holmes.

Another permutation of anchor-less law is called "legal positivism", where law can be binding on courts, rather than merely drifting with the whim of the judge.  However, that law is usually created out of the fevered minds of do-gooders, who enact layer upon layer of arbitrary regulations, based primarily on a philosophy which believes that only government can bring about good behavior in the lumpen masses.  Have a problem, pass a law, is their credo.

Both of these philosophies have combined to destroy a legal system which could have evolved to become better, not worse, had it not fallen into the hands of the relativists or statists.

They Really Do Have Principles - Just the Wrong Ones - And They Won't Admit It.


The legal elite who declaim the existence of universal natural law principles, still have quite a quiver-full of their own inviolable presumptions.  The difference is, they will not admit that they all share an unstated but iron-clad agenda.  Variance from this agenda - which I will set out below - is a basis for expulsion from the inner circle, and it is rarely done.

While stating that there are no absolutes, the elite cling to these absolutes nonetheless, and will never concede an inch of ground in their defense.  Also, they will almost never mention them.  They are like the secret Masonic rituals cannot be known by non-Masons, but are binding upon their members.

What are these non-negotiable principles, hidden in plain site, which the elite cling to?  Here is my list.  See if your experience verifies that they must necessary exist, even if they cannot be seen, just like chemists can predict that an unknown element must be there, because of a hole in the periodic table.  They are simple, just like the periodic table, and appear to be almost as certain as those elements in the table.

1.  The state is god.  The statist revolution to save mankind from itself must triumph at all costs, even if it destroys most of mankind in the process.  See Darkness at Noon by Arthur Koestler.

2.  Feminism is catechism.  Men are evil, women are victims, the children belong to the state.

3.  Abortion is the high, holy sacrament.  Don't touch it, ever.

4.  Government agents are priests.  Let them operate unimpeded.

5.  Dependency on government must be widespread.  Only then will freedom be undermined.

6.  Resistance is futile.  Our agencies and courts will ensure it.

7.  Wealth is evil.  Fairness demands it be equalized.

8.  War is the health of the state.  Empire is inevitable.