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The Supreme Court vs. The Powerless

Recently The New York Times has taken to criticizing the newly ‘conservative’ U.S. Supreme Court for rulings that respect and enforce Constitutional limits on the authority of the Congress and of regulatory agencies and of lower courts and of individual citizens to extract money and penitence from “powerful” individuals and corporations for perceived misdeeds. More often than not such criticism scarcely mentions the legal principles involved in the rulings or even the individual circumstances of the cases; rather, it invokes a misty-eyed empathy for the unfairness of the result, where “unfairness” is most often adjudged strictly in terms of whether or not the downtrodden were lifted up and/or the powerful diminished.

I wrote this to point out what should be obvious: that Supreme Court rulings are supposed to turn on points of law not on the degree of sympathy for or animus against particular litigants. It was not published, but to their credit the Times did publish a letter with a similar (although I thought less compelling) argument.

3 June 2007

Twice in the last few days an editorial in your Opinion section (“Injustice 5, Justice 4”, 31 May, and “The Harsh Jurisprudence of Justice Thomas” by Adam Cohen, 3 June) has lamented a failure in recent Supreme Court rulings to defend the powerless against the powerful. Cohen opined with condemnation that Thomas

“…regularly rules for the powerful over the weak, and has a legal philosophy notable for its indifference to suffering.”

while your editorial board was incensed that

“A court that once proudly stood up for the disadvantaged is increasingly protective of the powerful.”

It seems to have escaped the notice of your editorialists that ruling in favor of the powerless and against the powerful is not, and has never been, the charter or the proper function of the Supreme Court — or of any other court. In the words of revered Justice Oliver Wendall Holmes in refuting a call that he “Do Justice, Sir!” the proper function of the Supreme Court is strictly “…to apply the law.”

If the law happens to uphold the needs and desires of the powerless against the powerful, so much the better. But, if it does not, neither the Court nor individual Justices have a right, never mind a duty, to ignore that inconvenient fact. If we hold up as an ideal that “Justice is blind”, that before the court all people have equal standing regardless of their station in life beyond its walls, that must work both ways. A court that favors the powerless as a matter of policy and in contravention of the law makes a mockery of that ideal.

If the Court is wrong on the law, criticize it for its ignorance. If the Court is favoring one side over another in contravention of the law, criticize it for its bias. But do not criticize it for favoring the “wrong” side over the “right” one. Beyond questions of law, adjudging who is “wrong” or “right” is beyond the Court’s purview and is, therefore, an inappropriate standard by which to pass judgement on its decisions.

(C) Copyright 2007, Augustus P. Lowell

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