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Thursday, December 21, 2006

Jury of One

In an article in Slate this week, Seth Rosenthal (former Legal Director at Alliance for Justice) drew attention to a growing form of judicial activism which gets little attention from court observers, but which dramatically affects the rights of victims of discrimination, injured workers and a host of other wronged parties. Activist conservative judges are denying these individuals their Seventh Amendment right to a jury by throwing out cases prior to trial (which is known in legal parlance as granting summary judgment) without adequate justification.

Unsurprisingly, as Rosenthal pointed out, Bush appointees are some of the worst offenders: “The problem appears to be acute on the 8th Circuit U.S. Court of Appeals, where nine of the 11 active judges are Republican appointees, seven of them chosen by Bush.” He drew attention to several especially egregious examples from the past year where Bush judges granted summary judgment -- some of which are discussed here and here, at our Full Court Press blog.

Rosenthal contrasted the supposed modesty and adherence to original meaning of conservative judges with their proclivity for dismissing cases without jury trials:

Disrespecting the historic responsibility of the jury doesn't match up with the prototype of the modest jurist who conservatives say they embrace. Nor does it jibe with their championing of “constitutionalist” judges who adhere to the original understanding of our founding document. James Madison, after all, called the jury-trial guarantee “one of the best securities of the rights of the people” and wrote that it "ought to remain inviolate." Few things embody the will of the people like a jury verdict. And few things usurp it like displacing the jury from its fact-finding role.

Some conservatives love to accuse judges they disagree with of being “judicial activists.” But, to invoke several old clich├ęs:

People in glass houses....
Why do you notice the splinter in your brother's eye....
Before you accuse me....

You can fill in the blanks yourself.

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