Monday, December 21, 2020


     I’ve long been interested in the history of the English legal system, particularly in the centuries after the Norman Conquest. It had many aspects that would look unfamiliar even to a well-educated lawyer of our time. Among the ones I find most interesting are the “forms of action” available to judges and litigants in Norman courts. These took the shape of writs: documents that were required to conform to exact specifications, and which therefore limited the scope of judicial activism. Each writ had a Latin name descriptive of the kind of action sought and / or granted by the court. I am aware of twenty such writs; there may be others.

     Persons familiar with the Constitution will already know about the writ of habeas corpus (“You may have the body”): the action by which a gaoler is commanded to show cause for the imprisonment of a named party. There are only a few “valid replies” to a habeas corpus petition. Unless one of those replies is made and substantiated, the imprisoned party must be freed.

     Another writ of importance in American jurisprudence is the writ of certiorari (“To be determined”): A certiorari petition requests the attention of an appellate court to a particular case or pleading. If the appellate court agrees to hear the case, it’s said to have “granted cert;” to refuse to hear the case is to “deny cert.” The U.S. Supreme Court is barraged each year with such “cert petitions.”

     Just now there’s a controversy swirling around the Supreme Court owing to its denial of cert to the Trump Campaign’s case against several states concerning the theft of the presidential election. The Court denied cert on the grounds of “no standing,” which many legal authorities have deplored as a dishonest way to avoid involvement in the largest legal controversy in American history. Some have suggested that Chief Justice John Roberts compelled his colleagues to deny cert out of fear, though fear of what is left open to speculation.

     To remedy this unsatisfactory situation, I suggest that the Trump Campaign refile under the little known but magnificently effective writ of habemus in te magnum stercore. This writ, unknown to the Normans, can be of great power in a situation where contending pressure groups are straining to bend a judge or a Justice toward one or another side’s contention. Indeed, it can sometimes determine the verdict all by itself. Some think the Left has made use of this writ to bend Chief Justice Roberts in previous cases.

     What do you think, Gentle Readers who are also legal scholars?


Linda Fox said...

Not only not a legal scholar, but not a Latin scholar. Had to run that phrase through a translator.

Are you suggesting a little pressure by revealing the blackmail?

Francis W. Porretto said...

(chuckle) That's one way to go about it, Linda. But I was mostly having a bit of fun with the Latin I haven't used since college. (:-)

Steady Steve said...

Already done. See comments by Lin Wood on Twitter re: Roberts saying he'd make sure Trump wouldn't be re-elected and discussing with Bryer how to do so. Apparently he has it documented.