The rule of law

Many liberals seem to confuse the role of Supreme Court Justices and philosopher kings. Instead of the rule of law, they want the rule of "fairness" (as they see it). Even some ostensibly serious publications take this position.

The editors of Commonweal wrote , concerning the nomination of John Roberts to become Chief Justice of the Supreme Court:

Asked how 'compassion' should influence a judge's decisions, Roberts memorably told the committee that if the Constitution says the little guy should win, then the little guy will win, but if the Constitution says the big guy should win, then the big guy will win. As Roberts said, he sees the role of judge as analogous to that of an umpire: judges enforce the rules, they don't write them.

But Roberts's analogy limps. When it comes to the Supreme Court, the umpires are often involved in creating the rules. Moreover, as anyone who has played baseball knows, the business of calling balls and strikes is as much an art as a science. Personality and temperament play a decisive role. One umpire's strike zone is different from another's, and sometimes an umpire's strike zone will suddenly shift, as it did for the conservative majority in Bush v. Gore. In this regard, what is most disturbing about Roberts's testimony was his indifference to the competing claims of big and little guys. He doesn't seem even remotely bothered by the fact that in most circumstances the big guys have already won, and it is the little guys who look to the umpire hoping that his or her interpretation of the rules is guided by a fundamental commitment to fairness. That's what equality before the law should mean. If not animated by a concern for justice, the law invariably will treat some people more advantageously than others, particularly those who can afford to hire advocates like John Roberts.

I will be charitable here, and assume that the editors of Commonweal (a liberal religious and political opinion journal published by lay Catholics) didn't really understand just what they said.  The editors have just advocated that the Chief Justice of the Supreme Court, and by extension the whole Court, ignore the law when the law says that the 'big guy' should win.  Justice, particularly the editors' senses of justice, should prevail over the law.  Equality under the law doesn't mean that the law is impartial, but that it should mean that the compassion of the judges, their sense of fairness, should allow them to interpret the law in a manner other than as it was written, to give the 'little guy' the break he didn't have in life or wealth.

Conservatives have long complained that the Supreme Court has moved away from applying the law and the Constitution, moved away from being one of three co—equal branches of government, to an unelected hierarchy of philosopher kings, who rule by fiat.  Our friends on the left would never agree with that, not in so many words, but that is just what the editors of Commonweal have advocated.

What the editors have advocated is essentially the end of democracy.  We live, thank God, in a representative republic, a land in which the people have the freedom, the real freedom, to vote for those who will govern our nation.  Even though the editors didn't like the outcome last November, the American people had the opportunity to pass judgement on George Bush's presidency, and either retain him or replace him with John Kerry.  Even though the editors didn't like many of the outcomes, the American people voted on who would represent them in the House of Representatives, in the Senate, and, in many cases, in state legislatures and gubernatorial seats, county commissions, borough councils, boards of education, a whole host of elective positions.

We charge those people with the very specific duties of writing the laws which govern our society; that is how we express our aggregate wishes in a democratic manner.

What the Supreme Court does, in the end, is to look at the laws of our country, as written by our democratically elected representatives, and decide whether those laws are consistent with the Constitution, our basic and fundamental organizing standard.  Chief Justice Roberts said that he would judge those laws by that standard, and that if the Constitution said that the big guy should win, the big guy would win.

The editors of Commonweal didn't like that; they want a regime by which a judge's personal view of what is right or wrong, a 'fundamental commitment to fairness' as they put it, would take precedence over the law and the Constitution if that 'fundamental commitment to fairness' so required.  Not 'Equal Justice Under Law,' as the motto on the Supreme Court building proclaims, but a sense of justice over the law.

Plato held that democracy was an essentially poor organizing form of government; he thought it to be mob rule.  In his Republic, Plato took the position that reason should govern the state — and that it was the philosophers (among whom he was one) who possessed the knowledge of reason, and therefore should rule (with the aid of the warriors).

As nearly as I can see, the editors of Commonweal (among many others on the left) would be partisans of Plato's philosophy — whether they realize it or not.  Democracy is messy: sometimes it produces results that a minority does not like.  In a democracy, the disaffected minority has the chance to persuade enough members of the majority to the minority position to change the decision of the representatives, or the representatives themselves.  That isn't what the editors of Commonweal want; they apparently prefer a system in which as few as five unelected oligarchs can change the democratic decisions of the entire nation.

Tyranny would be a better word.

Dana Pico is the proprietor of Common Sense Political Thought.

Many liberals seem to confuse the role of Supreme Court Justices and philosopher kings. Instead of the rule of law, they want the rule of "fairness" (as they see it). Even some ostensibly serious publications take this position.

The editors of Commonweal wrote , concerning the nomination of John Roberts to become Chief Justice of the Supreme Court:

Asked how 'compassion' should influence a judge's decisions, Roberts memorably told the committee that if the Constitution says the little guy should win, then the little guy will win, but if the Constitution says the big guy should win, then the big guy will win. As Roberts said, he sees the role of judge as analogous to that of an umpire: judges enforce the rules, they don't write them.

But Roberts's analogy limps. When it comes to the Supreme Court, the umpires are often involved in creating the rules. Moreover, as anyone who has played baseball knows, the business of calling balls and strikes is as much an art as a science. Personality and temperament play a decisive role. One umpire's strike zone is different from another's, and sometimes an umpire's strike zone will suddenly shift, as it did for the conservative majority in Bush v. Gore. In this regard, what is most disturbing about Roberts's testimony was his indifference to the competing claims of big and little guys. He doesn't seem even remotely bothered by the fact that in most circumstances the big guys have already won, and it is the little guys who look to the umpire hoping that his or her interpretation of the rules is guided by a fundamental commitment to fairness. That's what equality before the law should mean. If not animated by a concern for justice, the law invariably will treat some people more advantageously than others, particularly those who can afford to hire advocates like John Roberts.

I will be charitable here, and assume that the editors of Commonweal (a liberal religious and political opinion journal published by lay Catholics) didn't really understand just what they said.  The editors have just advocated that the Chief Justice of the Supreme Court, and by extension the whole Court, ignore the law when the law says that the 'big guy' should win.  Justice, particularly the editors' senses of justice, should prevail over the law.  Equality under the law doesn't mean that the law is impartial, but that it should mean that the compassion of the judges, their sense of fairness, should allow them to interpret the law in a manner other than as it was written, to give the 'little guy' the break he didn't have in life or wealth.

Conservatives have long complained that the Supreme Court has moved away from applying the law and the Constitution, moved away from being one of three co—equal branches of government, to an unelected hierarchy of philosopher kings, who rule by fiat.  Our friends on the left would never agree with that, not in so many words, but that is just what the editors of Commonweal have advocated.

What the editors have advocated is essentially the end of democracy.  We live, thank God, in a representative republic, a land in which the people have the freedom, the real freedom, to vote for those who will govern our nation.  Even though the editors didn't like the outcome last November, the American people had the opportunity to pass judgement on George Bush's presidency, and either retain him or replace him with John Kerry.  Even though the editors didn't like many of the outcomes, the American people voted on who would represent them in the House of Representatives, in the Senate, and, in many cases, in state legislatures and gubernatorial seats, county commissions, borough councils, boards of education, a whole host of elective positions.

We charge those people with the very specific duties of writing the laws which govern our society; that is how we express our aggregate wishes in a democratic manner.

What the Supreme Court does, in the end, is to look at the laws of our country, as written by our democratically elected representatives, and decide whether those laws are consistent with the Constitution, our basic and fundamental organizing standard.  Chief Justice Roberts said that he would judge those laws by that standard, and that if the Constitution said that the big guy should win, the big guy would win.

The editors of Commonweal didn't like that; they want a regime by which a judge's personal view of what is right or wrong, a 'fundamental commitment to fairness' as they put it, would take precedence over the law and the Constitution if that 'fundamental commitment to fairness' so required.  Not 'Equal Justice Under Law,' as the motto on the Supreme Court building proclaims, but a sense of justice over the law.

Plato held that democracy was an essentially poor organizing form of government; he thought it to be mob rule.  In his Republic, Plato took the position that reason should govern the state — and that it was the philosophers (among whom he was one) who possessed the knowledge of reason, and therefore should rule (with the aid of the warriors).

As nearly as I can see, the editors of Commonweal (among many others on the left) would be partisans of Plato's philosophy — whether they realize it or not.  Democracy is messy: sometimes it produces results that a minority does not like.  In a democracy, the disaffected minority has the chance to persuade enough members of the majority to the minority position to change the decision of the representatives, or the representatives themselves.  That isn't what the editors of Commonweal want; they apparently prefer a system in which as few as five unelected oligarchs can change the democratic decisions of the entire nation.

Tyranny would be a better word.

Dana Pico is the proprietor of Common Sense Political Thought.