Supreme Court (in)Justices

There is a scene in the recent movie about the life of the English novelist Jane Austen where a young lawyer(the protagonist)ruefully concludes that "justice plays no part on the law."

The term "justice" has an ancient pedigree, of course. To Plato, in the Republic, justice meant "giving every man his due" -- whatever he (or she) deserves, or merits. Plato's most famous student, Aristotle, spoke of "proportionate equality." Today we often use the term "equity", but in any case justice means being impartial and fair to all concerned and not having a bias in favor of the rich, or powerful, or corporate interests, or conservatives, or liberals.

Sometimes the law is simply "a ass -- a idiot" as a Charles Dickens' character put it. How else can one describe the so-called "three strikes" laws in some states where a three-time repeat offender may be incarcerated for life for a minor third offense. Then there are the cases of excessive "prosecutorial zeal"(shall we say), where DNA evidence after the fact proves the imprisoned person was in fact innocent. Some 250 wrongful convictions have been reversed to date.

However, the most important injustices in our system of justice have involved the U.S. Supreme Court, where more than once in our history the majority has been blatantly biased, and the Court's decisions have been manifestly "unfair". In our time, the Lilly Ledbetter pay discrimination case was a clear example. As Justice Ruth Bader Ginsburg put it in her stinging dissent, the majority's "parsimonious" reading of the Civil Rights Act, which greatly constricted the applicability of the law in favor of corporate interests, served to undermine the very purpose of the law. The ACLU called the ruling a "get out of jail free card" for corporate America. (The Congress later acted to reverse the Court's ruling.)

The most recent, even outrageous example, involved the Court's reversal of decades of settled law and seven of its own previous precedents when it ruled that limits on election campaign contributions, mainly by corporations, violated the "free speech" protection under the Constitution. Corporations are not private individuals, of course, and they have plenty of free speech already. The fact is that money gives them a megaphone that can drown out the free speech of the rest of us. The Court's rationale was that the decision was dictated by a "strict constructionist" reading of the Constitution. Of course, the free speech clause said nothing about money, or about corporations. In fact, the Court's rationale violated both common sense and the common good.

So what's to be done? Well, in my dreams I imagine a (successful) re-play of the 1937 "court packing" proposal of President Roosevelt. After a similarly biased Court had struck down a number of New Deal measures, FDR proposed to add two more (liberal) Justices to the Court,as he and the Congress can do at any time. This is unlikely to happen, of course. Even the hugely popular FDR, after the greatest landslide re-election in history, up to that time, could not get Congress or the public to go along with it.

My other fantasy is even more unlikely, though it appeals to me as a form of poetic justice. The Supreme Court's power to strike down legislation is not actually authorized in the Constitution. It is in reality only a settled tradition that derives from the assertion of an "implied power" to do so by an early Supreme Court. So, under a strict construction interpretation, the Court's authority is a usurpation that the Congress and the President could at any time put to an end. Were that to happen, I'd bet the strict constructionists on the Court would find some rationale for loosening up.