Scant justice in our world, especially in Supreme Court Decisions.

By | April 13, 2011

Supreme Court justices are people too, and they make mistakes like any other ordinary mortals. — LA Times, 4/2/2011, Carol J. Williams

The skeptic who observes world events can tell you that our world that has little justice for the average person. It is easy to conclude that there is little or no fair play for most people. Consider just a few examples of gross injustice: the gross disparity of wealth, with the greater numbers being miserably poor; the disparity in living standards between people of rich and poor countries; the millions subject to corrupt and incompetent governments; the millions imprisoned because of political persecution and religious discrimination. We could continue the list indefinitely; but this is enough to make the point.

There is much injustice in the world. This does not even take into account the historical injustice and misery that people have suffered through the centuries.

“Well,” an optimist might reply, “in the USA there is justice.” Yes, today many Americans enjoy justice and high quality of existence. The system treats them fairly and allows them to realize a comfortable life style; many even prosper and become wealthy. But, again as any observer of contemporary society can tell us, justice and the good life is not granted to everybody. There’s a disparity of wealth and opportunity; and the law has not always been applied fairly and humanely. [1]

But, our optimist, might reply, “In the US we have our great Constitution, which two hundred and thirty five years ago, established a representative form of democracy and a society which goes a long way toward realizing justice for all.

Yes, for all its faults and shortcomings, the US Constitution is an admiral document which has stood the test of two centuries and provided inspiration for democracies around the globe. But as Timothy Ferris argues in his book, The Science of Liberty, the US Constitution, like the American Republic itself, is a social experiment. There are no guarantees that our constitutional republic will be a complete success. The Constitution itself must constantly be interpreted and applied to changing conditions and challenges. This is the function of the Supreme Court, the highest court in the land.

How have the courts performed? To the extent that one function of our constitutional government is to improve the prospects of justice for all citizens, how have our courts done in their work of interpreting and applying the constitution to changing conditions and social-political challenges? Not so well according to two newspaper reports that came out in April of 2011.

Two Los Angeles Times (4/3/2011) stories illustrate how badly the Supreme Court can do in applying to the constitution to cases bearing on the just treatment of groups of people or individuals.

First, we have a study of five very bad decisions by a group of legal scholars. The Los Angeles Times reported on a gathering of legal experts who examined a number of bad decisions of the Supreme Court.

A high-powered gathering of legal scholars at Pepperdine’s law school look at five decisions widely considered the worst in the court’s history. The rulings are presented as learning opportunities as well as thwarted justice.

“The legal scholars …examined the high court’s “Supreme Mistakes” —five decisions widely considered the worst in the court’s history.”

Consider four of these five infamous cases of the court.

The ones resulting in great injustice to individuals or groups are as follows:

1) The high court’s decision in Dred Scott vs. Sandford in 1857 held that the descendants of slaves weren’t entitled to U.S. citizenship or the protections of the Constitution, including Scott’s claimed right to sue for his freedom in the Louisiana Territory, where slavery was forbidden.

It was a deeply racist opinion that goes far out of its way to warmly embrace the institution of slavery,

— Daniel Farber, a UC Berkeley law professor who said the decision arguably led to the Civil War and hundreds of thousands of deaths.

2) Plessy vs. Ferguson, the 1896 ruling that upheld a Louisiana law requiring the racial segregation of railway passengers.

3) In Buck vs. Bell in 1927, fear and prejudice drove the high court to uphold a Virginia law allowing the sexual sterilization of institutionalized people.

4) Korematsu vs. United States, the 1944 high court ruling upholding the evacuation order against Japanese Americans after the bombing of Pearl Harbor.

Akhil Amar, a Yale University law professor, traced a historical tendency of the Supreme Court to accommodate racism among three of the … cases dissected by the scholars.

“These cases show that the Supreme Court does make mistakes, that the justices aren’t infallible. They show that the justices will be subject to the same interests and pressures of society at the time they make decisions as any other American.”

— Tom Best, acting dean of Pepperdine’s law school.

Secondly, we have a few cases in which the Supreme Court, in all its collective wisdom, has decided against defendants who served prison terms for crimes they did not commit.

This trend in court decisions was cited in another recent LA Times article:

Supreme Court shields prosecutors in wrongful convictions Though new DNA testing has shown hundreds of convicts to be innocent, the court has protected prosecutors from lawsuits and balked at letting prisoners reopen cases.

By David G. Savage, Washington Bureau of LATimes – April 3, 2011

Among the cases cited by Savage are the following:

A recent case in which, by a 5-4 vote Tuesday, the high court threw out a jury verdict won by John Thompson, the Louisiana man who had sued the New Orleans district attorney after he spent 14 years on death row for crimes he did not commit. [This] .. decision protects a district attorney’s office from being sued for a series of errors that sent an innocent man to prison.

Another case in which an innocent man, from Arizona, was sent back to prison for raping a child when the Supreme Court ruled he had no right to evidence that would later set him free.

In another case an innocent man, from Louisiana, was convicted of murder and came within weeks of being executed because prosecutors had hidden a blood test that later freed him.

The two men were linked at the Supreme Court last week by Justice Antonin Scalia, who argued that criminal defendants have no right to “potentially useful evidence” that “might” show they were innocent. (Mr. Scalia apparently does not see justice and fair play as relevant to his interpretations of the constitution.)

The journalist states that

since the 1990s, the advent of DNA evidence has swept across the American criminal justice system and revealed that hundreds of convicted prisoners were innocent. Yet, throughout that time, the Supreme Court has shielded prosecutors from claims that they hid evidence that could have revealed the truth and has been reluctant to give prisoners a right to reopen old cases.

Yes, it would be comforting to think that, at least in our legal system in the United States, justice is upheld. However, a look at the history of court decisions might lead us the conclude that ‘justice’ and fairness is not what the Supreme Court is about.

[1] The historian will remind us that US history is not an enviable one with respect to justice and fairness for all. The massacre of the native Indians and the destruction of their cultures in the name of white, European Christianity attest to some of this bloody, unjust history. We can add the good old institution of slavery, followed by a racially segregated and racially discriminating society, along with a history of injustice and discrimination directed against the poor, workmen and families. In terms of history, justice has been rare, if evident at all despite what Americans like to think.

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