When Clarence Thomas & John Roberts Defended The 7th Amendment

The Seventh Amendment provides that " [i]n Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved... Accordingly, we must conclude that the Seventh Amendment provides a right to a jury trial where the copyright owner elects to recover statutory damages... The right to a jury trial includes the right to have a jury determine the amount of statutory damages, if any, awarded to the copyright owner. It has long been recognized that "by the law the jury are judges of the damages.'' Lord Townshend v. Hughes, 2 Mod. 150, 151, 86 Eng. Rep. 994, 994-995 (C.P. 1677). Thus in Dimick v. Schiedt, 293 U.S. 474, 55 S.Ct. 296, 79 L.Ed. 603 (1935), the Court stated that "the common law rule as it existed at the time of the adoption of the Constitution'' was that "in cases where the amount of damages was uncertain[,] their assessment was a matter so peculiarly within the province of the jury that the Court should not alter it.''

So wrote Justice Clarence Thomas in his opinion for a unanimous Supreme Court, when it ruled in a 1998 copyright infringement case that the Seventh Amendment requires the right to a jury trial where the copyright owner elects to recover statutory damages. In Feltner v. Columbia Pictures Television, Inc., the Court overruled the Ninth Circuit Court of Appeals, which had affirmed a district court's ruling denying Feltner's motion for a jury trial. Justice Thomas' opinion included a discussion of the applicability of the Seventh Amendment to copyright infringement cases and, in effect, a terrific defense of the right to a civil jury trial and the role of local juries. Justice Thomas noted that even before adoption of the Constitution, in England and in the American colonies, "copyright suits for monetary damages were tried in courts of law, and thus before juries." And he wrote that the Copyright Act of 1790 didn't change that practice.

Ironically, the attorney asserting Mr. Feltner's Seventh Amendment rights was John Roberts, now the Chief Justice of the Supreme Court, and during oral argument before the Court, he eloquently noted the historical role and significance of civil jury rights enumerated under the Seventh Amendment:

In light of clear historical practice on both sides of the Atlantic prior to 1971, Feltner had a right under the Seventh Amendment to have a jury make that finding and others on which the award was based and determine the amount of damages to be imposed within the statutory limits.

The idea that... when Congress fixes the amount of the penalty it can therefore delegate that task to judges ignores the whole purpose of the Seventh Amendment.

The Seventh Amendment is to protect against judicial bias and corruption and overreaching and, while that's not implicated when Congress fixes the amount because Congress is doing that, the judge is just applying it, when you give that task to the judge the whole reason for having the Seventh Amendment comes into play...

I was pleasantly surprised to learn of this defense of the Seventh Amendment by Justice Thomas. My thanks to Bob Peck of the Center for Constitutional Litigation in Washington for pointing it out. Now if only the Roberts Court would only take a realistic view of the practical and harmful impacts of federal preemption and forced arbitration clauses on our right to a civil jury trial.

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Comment by Andrew Cochran on February 1, 2012 at 9:42am: Rosemarie, thanks much for your great responses, especially about arbitration clauses. I fear that the Supreme Court is turning the Federal Arbitration Act into an overarching statute that could force us to abide by such clauses even if we claim unenforceability. I'd appreciate your perspective on the recent decisions on arb clauses. And I hope you continue to write here about legal policy and our constitutional rights.

Comment by Rosemarie Newton on February 1, 2012 at 7:29am: Incidentally, you will note that the 7th Amendment has to do with suits at "common law", i.e., not a claim in the court of equity. A suit under the "common law" would be, for instance, a claim for damages, either a contract or a tort, that is, a dispute that can be resolved by awarding money damages. A suit in equity is -- well, if you're interested, you can look it up. You might find all of this so fascinating, you won't be able to stop reading, which is what happened to me!

Comment by Rosemarie Newton on February 1, 2012 at 7:23am: Andrew, thanks for this interesting article. The issue of arbitration clauses, which are sometimes 'enforced' is a great one. My husband, for instance, would never sign a contract that had an arbitration clause. He would just scratch out that paragraph, or phrase and insert a clause that said he wanted the contract, in the case of a later dispute, to be handled by the parties having the choice of judicial arbitration or adjudication by the State court; that he was not waiving his right to be heard on the merits in the State court system, with a right to jury trial. (Those aren't the complete words, of course.) In other words, if you are buying a car or signing a contract that is an 'arms-length' transaction, you can usually just cross out "mandatory arbitration" and fill in a phrase like the foregoing. Doctors have you sign contracts similar to that, but the key is you can agree to arbitration but it should not be "mandatory" or "fully binding" -- never give up your right to a jury trial. In any event, as in this case, even if the doctor has you sign a contract that calls for mandatory arbitration, this clause is not fully enforceable. In our wonderful system, if you have been damaged by a car dealer, you still can go to court and say that your 7th Amendment rights were violated, and in many cases get a jury trial.

The point is: you don't have to sign every contract that is put before you. There are lots of clauses in contracts prepared by attorneys for banks, etc., which can't be enforced. I guess the point is, get educated. These days it's pretty easy to do so.

Comment by Rosemarie Newton on February 1, 2012 at 7:04am: John, yes I'm a lawyer from a family of lawyers who have worked pro bono to defend the rights of indigents. My husband was a judge, so I've seen things from another perspective. I so understand your frustration. There are injustices every day in the legal system (though Congress doesn't set mandatory sentencing laws except in Federal court). Mandatory sentencing came about because people would be charged with a crime and would have no idea when they went to court, how long a sentence they might get. Some judges would throw the book at a defendant, others would habitually just sentence to probation--the judges were all over the place. So the state legislatures, one by one, began to set sentencing standards that the judges had to stay within.

It is a flawed system, largely because there are so many competing issues to grapple with -- the rights of the accused, the right of the public, the rights of victims, and the code of justice for all, which doesn't necessarily mean the same thing to everybody.

However, if you compare the situation of a defendant in an American court, to -- say, a Russian, German, or Mexican court . . . I think you will agree that, overall, Americans have the system that comes closest to satisfying all these conflicting demands of rights. At least, that is the belief I strongly hold, after 28 yrs practicing law myself, and at the age of 78 having seen up close thousands of cases, from the Manson trial to the O.J. trial.

Our Constitution is such a work of art, a work of genius -- and I think, a blessing of God as compared to other countries -- that it allows us as citizens to go about seeking redress of wrongs (or, at least until this most recent NDAA scandal, which you should study). In other cultures, they don't sit around discussing how they can change the legal system!

I hear so many complaints, certainly lots of very valid ones. And so many questions, all of them very appropriate. What this points out is that our schools do not teach anything about our court system, and so it makes it difficult for us to unite and bring about effective change. I certainly don't think it's wrong to grumble about the system, both the criminal and the civil procedures in each state should be and in most states, are subject to review.

To see how brilliantly the court system can work, John, check out the recent case of Sackett v. EPA -- you can google it. If you research that whole case you will see justice at work, but you will also see how necessary it is for people to approach the law with "clean hands", when it is a case of equity. The Sackett case is an example of what lawyers and activist citizens are doing to fight off the encroachment of the EPA and other government agencies on our liberties.

The law firm that took up the Sackett case and took it to the Supreme Court worked entirely on donations to finally get justice. And there is much more work to be done like this, in the courts, to stop the evil that confronts us. We need to use our system of laws, and our courts, to fight for freedom. The means are there, provided by the Constitution.

Comment by JOHN DELASAUX on January 31, 2012 at 10:05pm: Rosemarie, you write as though you have legal training.

You are denied a fair trial if there is a huge rock hanging over your head with these words written on it -- "If you lose, you will (without any doubt) be faced with a sentence of 22 (or some large number) years. The judge cannot adjust the sentence for any reason."

In a fair trial, you not only have the chance of an acquittal, you also have the chance of appealing to the judge for many mitigating considerations, which do not come into effect under the mandatory sentencing laws.

These laws are an attempt by Congress to step into the role of the judge and force all judges to "toe the mark" the way Congress wants. Every burglar gets 5 years, whether he is a drug-crazed teenager, or a father of 7 children who are all starving, or an innocent car driver who thought he was giving his neighbor a ride to the store to buy some groceries.

We all know that the Supreme Court doesn't automatically hear every case that we would like it to. I was just suggesting that it would sure by nice to find a way to get rid of the Mandatory Sentencing laws and put the judges back in charge of sentencing, however that can be accomplished.

Comment by Rosemarie Newton on January 31, 2012 at 8:39pm: Norma Sears -

Yes, I agree with you, Norma, the Kagan situation is more clear-cut; I also think that -- though I haven't followed all the news articles on this one -- that Justice Thomas's wife (what is her name?) was very very vocal and active to the point that there were serious objections not only by the press, but apparently among the justices. And the objections were sound, because judges themselves, you will notice, do not espouse causes and do not endorse candidates, etc. They have to be non-political, at least appear to be, because to give even the appearance of being prejudiced is enough to have a litigant before the court file a motion for recusal. Hope this helps.

Comment by Rosemarie Newton on January 31, 2012 at 8:34pm: It is possible to have a jury trial in an IRS case. We can still get the Code simplified.

Comment by Ed Stoneham on January 31, 2012 at 8:29pm: The point about the 7th amendment is an important one. The 7th amendment should also be applied to cases in which the IRS is accusing the taxpayer of wrongdoing. That would force the government to simplify the tax code so that there are few disputes and, hence, few trials. Just imagine how tied up the IRS would be with litigation if the 7th amendment were being obeyed. Let's make it so!

Comment by Norma J. Sears on January 31, 2012 at 9:00am: Rosemarie, It's not a question of appearance in Kagen's case. There are emails to prove it.

Thomas's wife participation in a tea party may have an appearance.

Comment by Rosemarie Newton on January 31, 2012 at 4:57am: John D, the Supreme Court is not authorized to hear cases involving anything other than Constitutional issues, or matters between sovereign states, which is why just getting the Supreme Court to hear a case is a major initial barrier. In any event, the defendant in a criminal case under the circumstances you have cited is not being denied a jury trial. Using your example, she gets the right to choose between going to trial and entering a plea to a lesser offense. She will be asked by the judge very clearly whether she has decided, with her attorney's counsel, to give up her Constitutional rights, one at a time: i.e., she will be asked if she willingly gives up her right to a jury trial, her right to confront witnesses, etc. You can get a jury trial if you're in jeopardy of going to jail -- sometimes you have to weigh the options. Not a Constitutional question here. Stay out of trouble.