As much as we could wish otherwise the courts do often seem to vote in a political manner.  The president’s power to appoint justices for life has impact far beyond his term in office.

The SCOTUS review of Obama Care is inciting claims of a partisan court.  Some question the legitimacy of the courts, but that seems to depend which view the courts uphold.

Charles Krauthammer questioned the legitimacy concerns in Obama vs SCOTUS in The National Review, 4/4/12.

Excerpts:

Having lost the argument, what to do? Bully. The New York Times loftily warned the Supreme Court that it would forfeit its legitimacy if it ruled against Obamacare, because with the “five Republican-appointed justices supporting the challenge led by 26 Republican governors, the court will mark itself as driven by politics.”

Really? The administration’s case for the constitutionality of Obamacare was so thoroughly demolished in oral argument that one liberal observer called it “a train wreck.” It is perfectly natural, therefore, that a majority of the Court should side with the argument that had so clearly prevailed on its merits. That’s not partisanship. That’s logic. Partisanship is fourDemocrat-appointed justices giving lockstep support to a law passed by a Democratic Congress and a Democratic president — after the case for its constitutionality had been reduced to rubble.

HKO comments:

I am certainly no constitutional lawyer or scholar, but there certainly seems to be a gap between how the constitution reads and how we want it to read.  This battle, regardless of how the Supreme Court rules, highlights a fundamental difference between the two parties in the balance of power between the individual and the state.

Over time there is a vacillation between liberal and conservative periods.  During more liberal periods the courts have expanded the power of the state. During more conservative periods there may be less rulings expanding the power of the state, but the precedence from the liberal periods are most often left in tact.   Thus the dynamic over time is towards a more empowered state.

There are certainly rulings where a justice’s decision may defy the partisan labels.

Over time the ideas that we use to discern political labels have also changed. Brandeis, considered a very liberal judge in history, often ruled against the state in matters of individual rights and feared the “bigness” of government  as much as he feared the negative impact that the “bigness” of large corporations were having on the society.

Investor’s Business Daily Thomas Sowell writes Obscure Court Decision Gives Government Sweeping Power, 3/26/12.

Excerpt:

Roscoe Filburn was an Ohio farmer who grew some wheat to feed his family and some farm animals. But the U.S. Department of Agriculture fined him for growing more wheat than he was allowed to grow under the Agricultural Adjustment Act of 1938, which was passed under Congress’ power to regulate interstate commerce.

Filburn pointed out that his wheat wasn’t sold, so that it didn’t enter any commerce, interstate or otherwise. Therefore the federal government had no right to tell him how much wheat he grew on his own farm, and which never left his farm.

The 10th Amendment to the Constitution says that all powers not explicitly given to the federal government belong to the states or to the people. So you might think Filburn was right.

But the Supreme Court said otherwise. Even though the wheat on Filburn’s farm never entered the market, just the fact that “it supplies a need of the man who grew it which would otherwise be reflected by purchases in the open market” meant that it affected interstate commerce. So did the fact that the home-grown wheat could potentially enter the market.

The implications of this kind of reasoning reached far beyond farmers and wheat. Once it was established that the federal government could regulate not only interstate commerce itself, but anything with any potential effect on interstate commerce, the 10th Amendment’s limitations on the powers of the federal government virtually disappeared.

HKO comments:

When you go to the polls next election, remember that the president’s impact on our lives through his court appointments drags out far beyond the attention span of his media fans and sychophants.

The thinking behind making hate crimes a distinct but additional offense is that the violence perpetrated extends to more than just the direct victim.  Criminals who commit act of violence because of a victim’s race, religion or sex attempt to have an impact on the wider group though the direct victim may be a single person.

But because of the political nature of of which groups are to be considered victims, the idea is fraught with unintended and undesirable consequences.  And underlying this intention is the invasion of legal judgement into a person’s thought.    If I physically and  viciously attack a gay or a minority it is not always a hate crime. It can only be discerned to be  a hate crime if I have spoken or written of my disdain for their race or sexual preference or otherwise somehow indicated their ethnic, religious, or sexual status was the expressed reason for my attack.  As Jeff Jacoby writes in  On trial at Rutgers: hate crime or thought crime?:

But even if the worst rumors were true, that wouldn’t change the great flaw of hate crime prosecutions. The criminal justice system should not concern itself with bad thoughts and pernicious attitudes, but with bad behavior and pernicious harms. The man who breaks your jaw because you are black or gay or Hindu should be punished as severely as the man who breaks it because you are socialist or a Yankees fan — or just because he’s a thug seeking a thrill.

The flood of hate crime laws passed in recent years has added to prosecutors’ leverage, but has it made society more just? “Proponents of the original bias crime laws said they meant to go after murderous plots by members of . . . hard-core hate groups,’’ writes New York University law professor James Jacobs. “Now, bias crime prosecutions most often involve young defendants, frequently mixed-up teenagers, who commit low-level offenses like criminal mischief and simple assault, typically escalating from spontaneous altercations.’’

Tyler Clementi’s suicide was a tragedy. But threatening a 10-year sentence for his roommate’s odious stunt with a webcam has far more to do with politics than with justice. And it reminds us, or should, that prosecuting people for their opinions is not the hallmark of a free society.

I just saw HBO’s “Hot Coffee”.  It is a 90 minute in depth analysis of individual cases on how we have compromised the effectiveness of our legal system.

The lead story was about the elderly woman who was severely burned by the hot coffee she got from McDonald’s.  This case became the poster child for tort reform and frivolous lawsuits.  But like so much in the media the whole story was rarely told.

The burns were severe, third degree burns involving skin grafts. McDonald’s had settled over 700 similar cases. The original judgment of $2.4 million dollars was decided by calculating two days worth of sales of coffee and was reduced to $480,000 by the judge.  In other words when you got the whole story the judgment was not so unreasonable and it showed how well the jury system actually worked.

The subject of tort reform, judgment caps, and mandatory sentencing should be repugnant to our legal system. I have stood against legislation from the bench: the wide interpretation of the law to such an extent that the judges actually write laws that the legislature never intended.  But I also stand against legislatures adjudicating cases they have never heard.  This includes caps and mandatory sentencing.

There are cases that are poorly decided.  Our legal system is not perfect, but we must not let the perfect become the enemy of the good.  We should not prohibit good justice because it is occasionally misguided.  Like many laws and regulations these efforts too often create bigger problems than they solve.

Unable to get effective tort reform legislation proponents sought to accomplish the same in states where judges are elected by funding campaigns to elect sympathetic judges, and smearing others.  I would propose that judges be appointed, though not necessarily for life, and confirmed by legislative branches.

“Hot Coffee” shows the outcome of tort reform. A child is brain damaged at birth by clear malpractice but the jury’s $5.7 judgment that will clearly be needed to take care of the child is reduced to $1.2 million because of caps.  The family now gets Medicaid to take care of the child: taxpayers are bailing out the doctor.

The final segment is about a 19 year old female Halliburton employee who is roomed with numerous men in a military style barrack in Iraq. She complains about the arrangement and that she this was not what she was told her quarters would be like. She complained about harassment and was eventually drugged and gang raped.  She was unable to get a jury trial because of a forced arbitration clause in her employment agreement. Forced arbitration clauses are written, administered, and often biased towards the company over the consumer or the employee.  It was new to me that these clauses could circumvent clear criminal action and negligence.

Al Franken, to his credit, sponsored an amendment that this would not be allowed with military contractors, and after four years the victim is getting her day in court.

An Alabama judge summarized it best at the end of the show. “What we need is tort respect, not tort reform.”

It is not considered enough that law should be just, it must be philanthropic.  It is not sufficient that it should guarantee to every citizen the free and inoffensive exercise of his faculties, applied to his physical, intellectual, and moral development; it is required to extend well-being, instruction, and morality, directly over the nation. This is the fascinating side of socialism.

But… these two missions of the law contradict each other. We have to choose between them. A citizen cannot at the same time be free and not free.  Mr. de Lamartine wrote to me one day thus: “your doctrine is only half of my program; you have stopped at liberty, I go on to fraternity.”  I answered him: “The second part will destroy the first.” And in fact it is impossible for me to separate the word fraternity from voluntary.  I cannot possibly conceive fraternity legally enforced, without liberty being legally destroyed, and justice legally trampled underfoot. Legal plunder has two roots: one of them … is human greed; the other is misconceived philanthropy.

From The Law By Frederic Bastiat first published in 1850