Justice Under Scrutiny

by, Samantha Syrnich

Introduction

It is a fundamental tenet of justice that the proceedings of our courts, as the arbiters of law and guardians of liberty, must be transparent to those they serve. The right of litigants to record court proceedings stands as a bulwark against the erosion of accountability, ensuring that the judicial process remains open to scrutiny and faithful to the principles enshrined in our Constitution. To prohibit such recordings, particularly when coupled with systemic failures to uphold constitutional oaths, casts a shadow over the legitimacy of our courts and, by extension, the government itself. A tripartite system of governance, as guaranteed by our Constitution, demands that no branch—especially the judiciary—operates in secrecy or beyond reproach. Without severability, any breach of this sacred compact undermines the entire edifice of our legal order. What follows is a compelling exposition of the legal and moral imperatives that demand judicial fidelity to the Constitution, the consequences of failing to uphold it, and the inherent right of the people to hold their courts accountable through the unblinking eye of transparency.

The Illegitimacy of a Judicial System Unmoored from Constitutional Duty

The integrity of our judicial system rests upon the solemn oath taken by every judge to uphold the Constitution of the United States and, where applicable, the constitution of their state. This oath is not a mere formality but the very foundation of judicial legitimacy. As articulated in legal precedent, any judge who fails to comply with this oath “wars against that Constitution and engages in acts in violation of the Supreme Law of the Land.” Such a judge, by acting without jurisdiction, renders their orders void and engages in conduct that courts have deemed tantamount to treason.

The Clearfield Doctrine and principles derived from Halsbury’s Laws affirm that administrative courts, operating outside constitutional bounds, lack lawful authority. Since 2008, it has been argued that no judge has operated with true constitutional legitimacy, as many have failed to adhere to their oaths, thereby undermining the rule of law. As stated in In re Sawyer, 124 U.S. 200 (1888), a judge who acts in violation of the Constitution lacks jurisdiction, and their orders are void ab initio. Similarly, U.S. v. Will, 449 U.S. 200, 216 (1980), and Cohens v. Virginia, 19 U.S. (6 Wheat) 264, 404 (1821), establish that a judge acting without jurisdiction commits an act of treason against the Constitution.

The Penalty for Treason and Misprision of Treason

The penalty for such judicial misconduct is severe. A judge who acts without jurisdiction may be guilty of treason, and any officer of the court who fails to report such conduct risks being complicit in misprision of treason under 18 U.S.C. § 2382. This statutory provision underscores the gravity of failing to uphold the Constitution, placing an affirmative duty on all court officers to report treasonous acts. The failure to do so implicates not only the offending judge but also those who enable such violations through silence or inaction.

Fraud Upon the Court: A Vitiating Force

When a judge or officer of the court engages in fraud upon the court, the consequences are equally dire. As defined in Bulloch v. United States, 763 F.2d 1115, 1121 (10th Cir. 1985), fraud upon the court occurs when the judicial machinery itself is corrupted—when a judge’s impartiality is compromised, or their judicial function is subverted. Such fraud “vitiates the entire proceeding,” rendering all orders and judgments void. This principle is deeply rooted in Illinois law, as seen in The People of the State of Illinois v. Fred E. Sterling, 357 Ill. 354 (1934), which holds that “fraud vitiates every transaction into which it enters,” including judgments. Similarly, In re Village of Willowbrook, 37 Ill.App.2d 393 (1962), and other precedents affirm that fraud undermines the legitimacy of any judicial act, leaving it without legal force or effect.

Judicial Disqualification: A Constitutional Imperative

The impartiality of the judiciary is not merely an ideal but a constitutional mandate. The U.S. Supreme Court in Liteky v. U.S., 114 S.Ct. 1147, 1162 (1994), held that disqualification is required if an objective observer would reasonably question a judge’s impartiality. Under 28 U.S.C. § 455(a), a judge must recuse themselves in any proceeding where their impartiality might be questioned, a requirement that is self-executing, as noted in Taylor v. O’Grady, 888 F.2d 1189 (7th Cir. 1989). Failure to recuse when required violates the Due Process Clause of the U.S. Constitution, as affirmed in United States v. Sciuto, 521 F.2d 842, 845 (7th Cir. 1996).
Any order issued by a judge who has been disqualified by law is void and without legal effect. Moreover, such actions may constitute federal crimes, including interference with interstate commerce, as the judge acts in a personal, not judicial, capacity. As courts have repeatedly held, judges enjoy no immunity for criminal acts, including treason or fraud upon the court. A judge who persists in acting after disqualification engages in conduct indistinguishable from that of a private citizen, wielding no more authority than “someone’s next-door neighbor.”

The Right to Record: A Pillar of Transparency

The prohibition on independently recording court proceedings exacerbates these constitutional violations. Litigants, as participants in the judicial process, possess an inherent right to document proceedings to ensure transparency and accountability. This right is essential to safeguarding the integrity of a tripartite system of government, where no branch may operate in secrecy or beyond the reach of public scrutiny. The inability to record proceedings shields judicial misconduct from exposure, undermining public confidence in the judiciary and violating the principle that litigants must not only receive justice but also believe they have received justice, as articulated in Pfizer Inc. v. Lord, 456 F.2d 532 (8th Cir. 1972).
Conclusion

The legitimacy of our judicial system hinges on adherence to the Constitution and the transparency of its proceedings. A judge who violates their oath, acts without jurisdiction, or engages in fraud upon the court undermines the rule of law and commits acts that may rise to the level of treason. The prohibition on recording court proceedings compounds these failures, denying litigants the ability to hold the judiciary accountable. Such actions strike at the heart of our constitutional order, which guarantees a government of checks and balances, not one of unchecked power or secrecy. Every litigant, armed with the right to record, stands as a sentinel of justice, ensuring that the courts remain true to their constitutional mandate. To deny this right is to erode the very foundation of our republic, rendering the judiciary—and by extension, the government—illegitimate in the eyes of those it purports to serve.

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I selected “Fight the Power” by Public Enemy to go with this write up, because in my view, it perfectly captures the spirit of resistance against corrupt authority that runs through my write-up on the illegitimacy of our court system. The song’s raw energy and lyrics about standing up to systemic injustice echo my belief that judges who breach their constitutional oaths are essentially waging war on the very foundations of our government, committing acts like treason and fraud upon the court.
Just as Public Enemy rallies against powers that oppress and hide behind facades, I argue for transparency—especially the right of litigants to film proceedings—to expose these violations and demand accountability in a tripartite system that can’t tolerate secrecy or unseverable flaws. It’s a battle cry for justice under scrutiny, urging us not to accept a broken judiciary but to fight back for true legitimacy.
Here’s the link to the official music video on YouTube: https://www.youtube.com/watch?v=mmo3HFa2vjg

Art: ‘Justice Under Scrutiny”

— Samantha Syrnich TLC