Cert Denied

Cert Denied

Article III Section 2 of the Constitution provides that the Supreme Court (SCT) "shall have appellate jurisdiction, both as to Law and Fact, with such exceptions, and under such regulations as the Congress shall make". The "shall" of Article III Section 2 is replaced by the "may" language of 28 USC 1254 and 1257 i.e, the Constitutional provision which guarantees the hearing of appeals is left to the discretion of judges, and the roles of the legislature and judiciary are reversed. The SCT, not the legislature, now tells us when it does or does not have jurisdiction to hear appeals. Sections 1254 and 1257 are unconstitutional on their face because they confer the legislature's contitutional powers to the SCT. Since no statute of Congress can confer constitutional powers, there is a constitutional right to review in the SCT, and it is a violation of the Equal Protection Clause to allow the SCT to pick and chose cases for review.

1. The denial of certiorari is not made on merits. State v. Baltimore 338 US 912 (1950). The existince of jurisdiction without hearing is a violation of due process and equal treatment. The 5th and 14th Amendment due process clauses protect a petitioner from being denied certiorari without a hearing at which the petitioner would be informed of the reasons for the denial and given the opportunity to present his reasons against denial. The hearing need not be a formal hearing. Board of Curators v. Horowitz 435 US 78 (1978).

2. There is no question that the constitution quoted contains an explicit granting of power to the legislature to restrict the SCT's appellate jurisdiction. Ex Parte McCardle 7 Wallace 506, 19 LEd 264 (1869). But, sections 1254 and 1257 do not restrict the SCT's appellate jurisdiction. Instead they permit the SCT to decide which cases it will review "both as to law and fact" under its existing jurisdiction, a power only Congress has under the constitution quoted.

3. The due process clause of the 5th Amendment, which is binding on the federal government, includes not only due process principles but also includes protections against government denials of equal protection. Board of Curators v Horowitz 435 US 78 (1978).

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