Who Will Judge the Judges?

The judicial systems of all countries are based on the principle that human beings are legally responsible for the foreseeable consequences of their actions. In other words, we are responsible for the harm that we cause other people, either by our actions or, in some cases, by our failures to act, regardless of whether the harm was intentioned or not. Without this basic assumption, there would be no justification for prosecuting and punishing people for the harmful effects of their actions on others. So, for example, a parent who leaves one’s child untended in the cold is liable to criminal charges if the child dies as a result of hypothermia. A person who drives a malfunctioning car, such as brakes, headlights, or windshield wipers that don’t work, and is involved in an accident as a result of that malfunction, will be liable to criminal charges stemming from the accident. Similarly, an automobile manufacturer that is aware of a defect in one of its models but does nothing to correct the problem can be held legally responsible if the defect leads to accidents and deaths.

It is immensely ironic, then, that judges are exempted from this fundamental principle of responsibility for the consequences of one’s actions and decisions on which all judicial systems are based. In deliberating on cases, judges are neither obliged to consider, nor are they held accountable for, the potentially harmful consequences of their decisions. And yet, all judges know that their decisions can influence future judicial decisions, a fact that is particularly true of the decisions made by a country’s Supreme Court, which decisions set the legal precedent by which similar cases are judged in the future. It is this judicial exemption from the basic principle which underlies the operations of all judicial systems around the world that has led to the unintended, perverse, and occasionally ridiculous effects of some of their decisions.

As I have stated elsewhere, the human system of perception includes the innate tendency to categorize the objects that exist in the world into distinct categories. Although we may believe that these categories are clearly differentiated from each other, upon closer examination, we sometimes find that they are not as separate and clearly demarcated as we may believe. For example, in the case of the seemingly distinct categories of apples and pears, there exist some varieties that could be placed in either category, for they possess qualities – in their appearance, taste, or texture – that partake of both categories.

Judicial systems, being human institutions that are administered by human beings, depend fundamentally on the way we categorize things. Apart from determining whether the accused is guilty of having committed the crime one has been charged with, it is the judge’s or police officer’s duty to determine in which legal category a given case belongs. Is this person a murderer or not? Does the act committed by the accused qualify as theft? Although these terms – murder, theft, rape, fraud, and other crimes – may seem clear and unequivocal in ordinary life, there arise cases that challenge the exact legal definitions of these and other terms, and sometimes result in the modification of an existing law or a legal term’s meaning or range of applicability.

Although we may think of judges as being among the most rational of all human beings, the truth is that they are just as susceptible as everyone else to the innate human tendency to imitate the behaviour of other people. In particular, I am referring to the strongly-established model of legal precedent, which means that, in seeking to apply the laws that have been enacted by a national, regional, or municipal legislature to specific cases, judges imitate and conform to – or, as they prefer to describe it, are guided by – the decisions that have been made by their colleagues and predecessors in similar cases in the past. In addition, in many countries there exists a hierarchy of courts, from local to regional to national, so that the jurisdiction, and hence the prestige and importance, of each court increases as the extent of its legal domain widens. The idea of a Supreme Court has been adopted in many countries, as the final legal arbiter of occasionally controversial issues about the application of a country’s laws to specific cases.^[1]

However, this judicial imitation is occasionally inexact because reality is much more complex and varied than a simple set of human-ordained laws, and so there arise cases whose categorization is not easily determined. Often, these cases are judged by a country’s Supreme Court, which then delivers a definitive judgment, rule, law, definition, or categorization that becomes a precedent which is imitated by all other judges in the future, including future members of the Supreme Court.

Considering how important these decisions can be, it is strange that the inhabitants of many democratic countries have voluntarily ceded this judicial power and control over a part of their lives to a very small group of individuals who are neither elected by nor responsible to them for the potentially harmful consequences of some of their decisions. In doing so, they have placed their complete trust in these individuals and in this system, a trust that is, however, not always justified. Although it is true that most judges are impartial in their application of the law to specific cases, and they try not to let personal considerations and biases affect their decisions, it is most certainly not true that judges never err. Due to the established model of legal precedent, when a bad or faulty decision is made, especially by a country’s Supreme Court, the harmful effects of that decision are multiplied and diffused in perpetuo, without any checks – unless the members of a future Supreme Court overturn that decision, thereby setting a new legal precedent. This grave defect is due to the strange structure of the tripartite American system of government, which was based on the abstract idea of the separation of powers, an overly simplistic political theory that was advanced by a theorizing fool named Montesquieu.

A series of gradual modifications in the definition of a term or the application of a law can lead to an absurdity. To illustrate what I mean, let us consider the following example: suppose that we are standing facing due north. Then I say to you, “Surely you will agree that a one-degree change in our direction will not appreciably change the direction we are facing, and therefore, after making this tiny alteration in the direction we are facing, you will agree that we are still facing north?” Then, after repeating this operation many times, by gradual and barely perceptible changes, one eventually finds oneself facing south, while continuing to declare that one is still facing north. The same result can be achieved by starting with the colour white and then, by a series of barely perceptible changes, transforming the colour to black, all the while continuing to call it white. The belief that small cumulative changes do not matter is obviously false. And yet this principle – that small, cumulative changes do matter because they can, over time, result in a big change – is sometimes ignored in courts of law.

To give an example of what I am talking about, let us consider a specific case that has had important and wide-ranging consequences in today’s world. In the United States, from allowing a company to patent a single-celled bacterium, the American judicial system and patent office have proceeded, by gradual increments, to the extreme of allowing companies to patent living plants and animals, including parts of human beings.

The age of biocolonization was “officially” launched in 1980. That year witnessed a little-noted U.S. Supreme Court decision, Diamond v. Chakrabarty. This unheralded case will eventually be seen as one of the most important and infamous legal decisions of the century.

The case began in 1971, when Indian microbiologist Ananda Mohan Chakrabarty, an employee of General Electric (GE), developed a type of bacteria that could digest oil. GE quickly applied to the U.S. Patent and Trademark Office (PTO) for a patent on Chakrabarty’s genetically engineered oil-eating bacteria. After several years of review, the PTO rejected the GE patent application under the traditional legal doctrine that life forms (“products of nature”) are not patentable.

Eventually, the case was appealed to the Supreme Court. GE and other corporations argued before the court that life forms were simply chemical products that could be patented just like any other “manufacture.” A small number of public interest groups argued against the patenting of the microbe on the grounds that “to justify patenting living organisms, those who seek such patents must argue that life has no ‘vital’ or sacred property . . . and that once this is accomplished, all living material will be reduced to arrangements of chemicals, or ‘mere compositions of matter.’ ” Opponents also reasoned that with patent profits as fuel, the accelerated drive to commercialize engineered life would eliminate all chance of objective public education and participation in the policy decisions involved.

Most expected the Supreme Court to support the PTO and to reject the GE patent. However, in June 1980, the Supreme Court handed down its surprise opinion. By a five-to-four margin, the court decided that Chakrabarty was to be granted his patent. The highest court in the United States had decided that life was patentable. The court dismissed the vision of a “parade of horribles” suggested by those who thought that the decision would lead to the engineering and patenting of higher life forms; it stated that the issue was not whether there was a “relevant distinction (in patentability) between living and inanimate things” but whether living products could be seen as “human-made inventions.”

The next decade was to show that both patenting proponents and opponents were correct. Patenting did provide the economic trigger for a lucrative biotechnology industry, as GE had hoped. However, it also produced the “gruesome parade of horribles” feared by many and showed how inevitable was the slippery slope from the genetic engineering and patenting of microbes to that of plants, animals, and, finally, human genes, cells, and tissues.

[…]

The Patent and Trademark Office’s decision to patent genetically altered animals was a direct result of the misguided Chakrabarty decision by the Supreme Court. In 1985, five years after the court’s historic decision, the PTO ruled that Chakrabarty could be extended to apply to the patenting of genetically engineered plants, seeds, and plant tissue. Thus the entire plant kingdom was opened up to patent protection. Then on April 7, 1987, the PTO issued a ruling specifically extending the Chakrabarty decision to include all “multicellular living organisms, including animals.” The radical new patenting policy suddenly transformed a Supreme Court decision on patenting microbes into one allowing the patenting of all life forms on Earth including animals. Under the ruling, a patented animal’s legal status is no different from that of other manufactures such as automobiles or tennis balls.^[2]

Unlike human creations – which were the original object of patent protection, and which are all dead, that is, they cannot reproduce themselves, and, moreover, do not exist in Nature – these living creations do reproduce themselves and are capable of existing independently of human beings. It is an absurdity to allow humans, who did not invent these living organisms, such as wheat, cows, pigs, and fish, by altering one out of the many thousands of the organism’s genes, to claim exclusive ownership over any organism that contains that single gene. This is a model of ownership that has no parallel anywhere else in the human world, for it declares that, by virtue of owning 0.01% or less of an organism’s genes, a person or company can claim legal ownership over the entire organism.

The remarkable fact about this process is that, even though it was probably not the intention of the five U.S. Supreme Court justices to permit the patenting of multicellular organisms such as animals, plants, and human beings, that is precisely what their original decision has begotten. Had they specified in their decision, which they egregiously failed to do, that their decision was strictly limited to single-celled organisms such as microbes, then it would not have led to the many absurd and alarming extensions of their decision. This is merely one example of the fact that judges are not held accountable for the foreseeable bad or harmful effects of their decisions, the basic principle that underlies the operations of all judicial systems in the world.

Another example of a bad judicial decision is the decision made by the U.S. Supreme Court in 1886 that corporations are citizens. It is hard to imagine a more foolish decision than this – to give corporations the same rights and protections as individual citizens; for by doing so, these judges, in seeking to protect corporations, inadvertently deprived ordinary citizens of some of their rights. Individuals need rights precisely because, as individuals, they are weak and unable to protect themselves from those who, because of their power, money, or prestige, would harm, cheat, or oppress them. But this is clearly not true of corporations, the largest of which are powerful entities that command many thousands of loyal workers who do their bidding, and large amounts of money with which they can accomplish their usually narrow objectives. Thus, this faulty ruling has strengthened corporations at the expense of the very group that the Bill of Rights and other legal protections such as the Fourteenth Amendment were meant to protect, namely ordinary citizens, and more specifically, citizens who are discriminated against, such as black people.

In 1886, in the case of Santa Clara County v. Southern Pacific Railroad, the [U.S. Supreme] Court declared without argument that the Fourteenth Amendment of the U.S. Constitution, which guarantees equal protection of the laws (and was originally intended to provide protection for actual human beings denied such protection), applied to corporations. In 1890, it used this principle to start a series of rulings over the next fifty years that were used to strike down economic and often anticorporate regulations under the Fourteenth Amendment’s doctrine of substantive due process. Fifth Amendment due process and Fourth Amendment protections against unreasonable searches were added in 1893 and 1906 respectively. And then, in the 1970s, the pace picked up and some really remarkable bending of the law took place to empower the private sector in ways that would have been unimaginable to those who once saw property rights as a tool by which to empower individuals.^[3]

From Dartmouth^[4] onward, the theory of corporations evolved; they ultimately came to be seen as “natural entities” with “a separate existence and independent rights.” Santa Clara was a major step “forward” in this process. The case was presided over by Chief Justice Morrison “Mott” Waite, a Yale-educated Ohio lawyer who was the seventh person to whom President Ulysses S. Grant had offered the job and who was derided by The Nation as being “in the front-rank of second-rank lawyers.” Nonetheless, he presided over nearly 3,500 cases during his fourteen-year tenure, many of which involved interpretation of the Thirteenth, Fourteenth, and Fifteenth Amendments and oversight of the adaptation of American law to the booming world of a post-Civil War America increasingly dominated by national enterprises such as the railroad industry. If there was a theme during his court, it was the systematic limitation of the power of the U.S. federal government.

Even before oral arguments in the case began, Chief Justice Waite informed the participants in the case that “the Court does not wish to hear argument on the question whether the provision within the Fourteenth Amendment to the Constitution which forbids a state to deny to any person within its jurisdiction the equal protection of the laws applies to these corporations. We are all of the opinion that it does.” The statement was included in the headnote to the case, and with that notation, the basis for the accumulation of ever more “rights” by corporations was established.^[5]

The purpose of this foolish decision was to protect corporations from governments, which, prior to this decision, had the power to restrict, punish, and dissolve corporations that failed to abide by the rules contained in their corporate charter, or otherwise caused harm to citizens. Its effect has been to liberate corporations, which are not democratic entities, from the control and oversight of governments, which are democratic entities. It is not at all surprising that, after more than a century of cumulative judicial decisions and annulments of government laws, whose purpose was to protect citizens from harm, based on this single, original, faulty decision, the United States is increasingly becoming a totalitarian corporate state, where many citizens are at the mercy of corporations, to whom more and more power has been granted or simply appropriated by them, in the mistaken belief that this will lead to the creation of an ideal society for all of its citizens.

Writing seventy years after the initial passage of the Fourteenth Amendment, the U.S. Supreme Court justice Hugo Black lamented the fact that of all the cases to which it was applied, “less than one-half of one percent invoked it in protection of the Negro race, and more than 50 percent asked that its benefits be extended to corporations.” Given that the amendment was passed after the Civil War to correct the grotesque ways the law had been used to deprive African Americans of their liberties and fundamental rights, Black’s shock was easy to understand. It is quite clear that corporations were never the amendment’s intended subject.^[6]

It is a glaring inconsistency that, given how, even today, many Americans, including judges, are extremely solicitous, to the point of abject servility, to apply the laws contained in their country’s Constitution according to the intentions of its founders, judges have almost completely ignored these intentions in the case of the Fourteenth Amendment, and have applied it in a manner that is inconsistent with its original intention.

Both of these foolish decisions have considerably increased the scope, extent, and strength of corporate tyranny. Since corporations are legal entities whose primary objective is to make money by producing things or providing services and, moreover, given the way that corporate behaviour has changed over the past decades, to make as large a profit as possible for their no-responsibility shareholders, no matter how that profit is made, it should be obvious that giving them unbridled license to do as they please will inevitably lead to many undesirable situations, where the interests of the corporation conflict with the interests of ordinary people, who may be harmed by their actions. This is because corporations are set up so that, due to the feature of limited liability, which in effect means no liability for the corporations’ actions, decisions, and mistakes, those who own and control them are not obliged to consider the effects of their actions on others. It is precisely in such cases that governments and law courts must intervene to protect people from harm. When they fail to do so, as is happening more and more often in the United States because of the irrational hatred of government that prevails there, there is a regression to earlier, less civilized periods of human history, when the strong and powerful oppressed, exploited, dispossessed, enslaved, injured, killed, and in other ways harmed the weak, simply because they had the will, the power, and the impunity to do so.

What, then, is the reasonable behaviour or remedy, given this deferential and imitative tendency on the part of judges, which can lead to the widespread imitation of bad decisions that compound the original mistake? The answer is that, in making their decisions, judges must take into consideration the possible harms which their decisions may cause, along with the distortions and deformations that their decisions may give rise to in the future, by making explicit, whenever they feel it is necessary, the limitations of the applicability of a given decision, in order to counteract the potentially harmful effects of the established model of legal precedent, and the human tendency to ignore small changes which, over time, can lead to an unintended radical change in the interpretation or application of a law or decision. At the present time, most judges are neither obliged, nor do they always make the effort, to include such important considerations in their decisions, a tradition that clearly violates the widely-recognized legal and societal principle that we are all responsible for the foreseeable effects of all of our actions. In other words, it is no longer sufficient for judges to decide each and every case in vacuo, that is, solely in its relation to the law, for clearly every legal case exists in a continuum of cases, being influenced by past cases, and therefore it has the potential to influence future cases, including in harmful or undesirable ways.

Human institutions, like all utopias, that are based on theoretical ideas which may seem good or perfect in theory, when they are applied in real life, turn out to have many unforeseen flaws, defects, and problems. This basic observation about the imperfection of human ideas and systems applies to Montesquieu’s theory of the separation of powers – legislative, executive, and judicial – for it has begotten a judicial system that lacks a mechanism for correcting bad or harmful decisions, when those bad decisions are made by a country’s Supreme Court. The question that Americans must ask themselves is, whether they will continue to submit to the increasingly tyrannical rule of corporations, which is in large part due to this basic flaw in their judicial and political system, or whether they will act to free themselves from this new and dangerous form of tyranny.

[1] In recent times, the attempts made to establish an international court have had limited success, primarily because many countries, in particular the most powerful, have been extremely reluctant to cede their legal sovereignty to these courts. Similarly, in the political sphere, the United Nations, whose aim was to establish a global political democracy among all the nations of the world, has not been especially successful in establishing a global order, as well as in regulating disputes and preventing wars between different countries because the more powerful countries have been unwilling to cede control over various matters to this governing body.

[2] The Case Against the Global Economy: And for a Turn Toward the Local, pp. 133-135 (“Biocolonization: The Patenting of Life and the Global Market in Body Parts” by Andrew Kimbrell). Edited by Jerry Mander and Edward Goldsmith. Sierra Club Books, San Francisco, 1996.

[3] Power, Inc.: The Epic Rivalry Between Big Business and Government—and the Reckoning That Lies Ahead by David Rothkopf, chapter 6. Viking, New York, 2012.

[4] Trustees of Dartmouth College v. Woodward was an important Supreme Court ruling in 1819 that recognized the college’s charter, which predated the American War of Independence, since the college was incorporated in 1769, as an inviolable contract that could not be dissolved by the New Hampshire state legislature, as the latter had attempted to do. In other words, it granted to corporations a legal independence from governments which previously they had not enjoyed. Of course, this independence was only granted in this particular case to Dartmouth College, which was an educational, and not a business, corporation; moreover, the college was incorporated before the existence of the United States as a separate legal and political entity, a particular feature that differentiated it from the great majority of other American corporations.

In the case of a corporation that was incorporated after the founding of the United States, it is clear that these terms of incorporation continue to be valid and binding. Hence, this case should have applied in future cases only to corporations like Dartmouth College that had been incorporated prior to the existence of the United States. But given the human, as well as judicial, tendency to generalize from particular cases to a general rule, while overlooking important differences, it was later assumed that this ruling meant that the same legal independence should be granted to all corporations, regardless of their nature and the time of their incorporation, a mode of reasoning that is highly dubious, to say the least.

[5] Power, Inc., chapter 6.

[6] Ibid, chapter 6.