“I’m just asking how you think my equitable powers do not attach to a plane that has departed the U.S., even if it’s in international airspace,” said Judge Boasberg.
Since he had ordered any targeted plane already in flight to turn around, clearly, he thought this mysterious equitable power could accomplish his desired outcome. Who knew that every federal judge had superpowers?
The U.S. Constitution does not have Infinity Stones; just Article III. Section 1 states that “the judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” And Section 2 clarifies that “the judicial Power shall extend to all Cases, in Law and Equity.” Law and equity are mentioned separately because in Anglo-Saxon tradition, the cases of each were historically heard in different courts. In fact, there were distinct federal courts for law and equity in the United States until 1938, when they were merged.
This fact lays the foundation for where to apply Elon Musk’s chainsaw: trim equity away from law in the federal courts. Congress can do it without the Supreme Court by simply repealing the 1934 law which delegated its authority over procedural rule-making to SCOTUS.
Why is this cut the solution? Bluntly, since the new, separate courts could create new seats, new judges would have to be appointed to wield that equitable superpower — and make equity great again.
The more traditional perspective covers some interesting territory. During President Trump’s first term, as the original “Russia hoax” was being uncovered, Chief Justice Roberts appointed Judge Boasberg to preside over the Foreign Intelligence Surveillance Court (FISC). The DOJ inspector general reviewed the FISA warrants to assess the government’s role in the hoax, and Judge Boasberg asked Mary McCord to advise the FISC during the I.G. investigation. Now, not only did Mary McCord participate in some of the DOJ decisions that led to the abuse, but her husband, Sheldon Snook, worked in the office of Chief Justice Roberts (full story here). This social network is why any appeal of Judge Boasberg’s rulings will probably not lead to a clear decision from SCOTUS.
To succeed on appeal, Justice Barrett would have to forsake her mojo for conjuring a 5-4 decision with Justice Roberts et al. Although that is unlikely in itself, the real understanding of equity in the Supreme Court is in even worse shape. Justice Thomas wrote a dissenting opinion in Liu v. SEC, in which a recently invented equitable superpower called “disgorgement” was reviewed by SCOTUS. Disgorgement refers to forcing someone who “unjustly” enriched himself to give up those “ill-gotten” gains; it was used by Judge Engoron to “justify” his $355,000,000 judgment against President Trump in New York State (more about the N.Y. case here). Four years before Judge Engoron’s decision, Justice Thomas wrote:
The majority believes that insistence on the traditional rules of equity is unnecessarily formalistic … but the Founders accepted federal equitable powers only because those powers depended on traditional forms. The Constitution was ratified on the understanding that equity was “a precise legal system” with “specific equitable remed[ies].”
A few historical facts are needed to fully understand Justice Thomas’ argument. The Court of Chancery was that of the chancellor, the highest official after the king (for Gilbert and Sullivan fans, think Iolanthe). When the issue of a suit came within the scope of a law, whether statutory or common law, the law courts would determine the facts and apply that law. As strange as it might seem to us today, a few hundred years ago, not every act that a person might think of was covered by a law. The disputes without a controlling law went into a court of equity, where a judge tried to fashion an equitable or fair remedy. A source nearly contemporaneous with our nation’s founding outlines the development of equity:
The court of equity … was held before the king and his council, in the palace, where one supreme court for business of every kind was kept. At first the chancellor became a judge, to hear and determine petitions to the king, which were preferred to him; and in the end, as business increased, the people addressed their suit to the chancellor, and not to the king; and thus the chancellor’s equitable power, by degrees, commenced by prescription. (Encyclopedia Britannica, 1771, Article: Chancellor)
The king, quite understandably, does not want to spend all day settling squabbles among his subjects, so he delegates his authority — all of it — to his chancellor to do that job. Over time, the chancellors begin to see patterns among these bewildering complaints and, being not just human, but also English, fashion off-the-shelf remedies to fix them. Thus, equity became superficially “a precise legal system” with “specific equitable remed[ies]” as Justice Thomas quotes.
Now we can understand what Justice Thomas means by “the Founders accepted federal equitable powers only because those powers depended on traditional forms.” A judge in equity who did not feel constrained by the traditional remedies could claim all the power of a king to fashion one according to his fancy. Looking at Judge Boasberg’s statement in this light raises the concern that he really believes that there are no limits to his equitable power. And there are eight Supreme Court Justices who may agree with him; Justice Thomas was alone in his dissent.
People should not think these equitable superpowers will never be used against them because, as N.Y. governor Hochul so eloquently put it, “they’re different than Donald Trump.” Many government agencies, like the SEC, have the authority to seek “equitable relief” in federal court to enforce their regulations. Unlike 1787, when the U.S. Constitution was written, we live in a time with so many regulations that an average person commits “three felonies a day.” Each of us faces the very real possibility of appearing without the right to a jury before a judge with equitable superpowers, who weighs our case against that of his federal coworkers.
We have to use Musk’s chainsaw. It’s our only hope.
Centinel is a pen name meant to recollect the insight and prescience of the Anti-Federalists.
Picryl.
Jesus Christ is King
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