Dr. Leon Koziol
Director, Parenting Rights Institute
Former New York trial and appellate attorney
President Joe Biden’s new commission to study an overhaul of our Supreme Court met for the first time today, April 16, 2021. According to a New York Times story by Charlie Savage, that commission will now explore changes well beyond an increase in the number of justices proposed by a group of lawmakers yesterday. This is a positive development given the political motivations behind the expansion plan which has already crashed and burned.
That does not mean the idea of an expanded high court should be dismissed altogether. As I urged in yesterday’s post, it simply means that any such proposal should be based on merit, one that places the interests of aggrieved citizens over the categorical ideologies of the current nine-member bench. Leaders on both sides of the aisle wisely recognize that the Supreme Court must not be transformed into a political institution, however implausible that may be.
To that end, the legacy of Susan B. Anthony may be instructive. This famous leader of the women’s rights movement was arrested in Rochester, New York for the crime of voting in the 1872 elections. She asserted the newly adopted Fourteenth Amendment as her justification. Her criminal case went to trial the following year before a presiding justice of the Supreme Court named Ward Hunt. He was born in Utica, New York, my home town, during its heyday as a thriving industrial hub. After serving as its mayor, he was appointed chief judge of New York’s high court before being nominated to the Supreme Court by President Ulysses S. Grant.
At the time, justices of the Supreme Court presided in both trial and appellate capacities among various federal circuits. So bizarre was this practice that when I first learned of it in the Anthony case, I immediately believed that she was tried before a justice of the state supreme court which, unlike all other states, is the trial level court in New York. Ward Hunt deliberated in a way that might shock today’s conscience, but then again, startling parallels can be made to modern day courts when I revisit my ordeal shortly as a persecuted civil rights attorney, aggrieved parent and judicial whistleblower.
Judge Hunt essentially conducted a star chamber trial. He used Anthony’s unsworn statements at the arrest scene as testimony against her while refusing to let her take the stand, directed the jury to find against her, and even issued a guilty opinion prepared prior to opening statements. He ordered her to pay a fine of $100 which she refused and then failed to incarcerate her as a consequence so that no appeal could be taken to the full Supreme Court. Such egregious deprivations of due process were not rectified until 1895 in the case of Sparf v United States which prohibited judge verdicts in place of the jury in criminal cases.
The effective merger of trial and appellate courts did not end until the circuit courts of appeals were created by act of Congress in 1891. There are currently 13 circuits with justices ranging in number from the First Circuit in Boston with six to the Ninth Circuit in California with twenty-nine. They all operate with 3-judge panels that decide most appeals and full court, or en banc review, for high profile matters. A loser in a panel appeal can petition for full court review, but it is rarely granted (much like the petitions denied by the Supreme Court). This two-tier process of appellate review assures that all properly filed appeals will be heard.
The current proposal to expand the Supreme Court from nine to thirteen is merely an increase in number, a bureaucratic exercise bent on avenging President Donald Trump’s conservative appointments. It does not assure that more cases will be heard and may even reduce the high court’s capacity when more justices delay outcomes through complex opinions, i.e. unanimous, majority, plurality, concurrent and dissenting. To be truly beneficial for the people served, that proposal should incorporate the two-tiered circuit court structure which has proven effective for many decades. A thirteen member Supreme Court, for example, could feature four three-judge panels with a chief justice focused on administrative duties.
The Susan B. Anthony trial was known for its positive impact on women’s suffrage, but it also helped shape a better court structure for the delivery of justice. So outraged was this defendant by the miscarriage delivered to her that she openly defied the orders of a Supreme Court justice, including a fine that was never paid. We look back today with great admiration for her courageous stand. However when a similar one is taken by reformists and whistleblowers of modern times, retaliation is common with the typical reputation damage that comes with it. By killing the messenger, corruption thrives in all branches of government.
Therefore the Biden Commission must take a hard look at judicial immunity doctrines and compensation of whistleblowers for the wrongs committed against them. My ordeal is exemplary. Like the Susan B. Anthony criminal case, my family court process featured judge verdicts on child custody and support with no jury at all. I was directed to cease making objections by one judge, Daniel King, which compelled me to exit and waive my rights to testify. After his disqualification, replacement Judge James Eby, forced the litigants and their paid attorneys to make a 160 mile round trip from Utica to his Oswego courthouse to receive a decision that had already been completed.
Ironically the appellate courtroom in Rochester named after Susan B. Anthony is the same one where my law license was first suspended for the stand I took against the Ward Hunts of today. Don’t let my sacrifices be in vain. Help us in our cause to reform our nation’s broken justice system. Share this post with media, public officials and aggrieved litigants. Make a donation here at Leon Koziol.com or call our office at (315) 380-3420. I can also be contacted directly at (315) 796-4000. E-mail option is firstname.lastname@example.org.