"It profits me but little that a vigilant authority always protects the tranquillity of my pleasures and constantly averts all dangers from my path, without my care or concern, if this same authority is the absolute master of my liberty and my life."

--Alexis de Tocqueville, Democracy in America

Saturday, June 29, 2013


I have been in trial all week, so I haven't been blogging much.   The trial has been fascinating for odd reason -- we've been zealously defending against a case that is so weak and, frankly, pathetic, that it never should have been brought.   Ironically, two of the main news stories I missed because I was in court were also cases that never should have been brought.

First, the Supreme Court's decision on the Defense of Marriage Act, declaring the law -- supported at the time by, among others, Senators Harry Reid and Joe Biden, and signed by President Bill Clinton -- unconstitutional on the bizarre grounds that its sole legislative motivation was hatred toward gays.   But, as Justices Scalia, Roberts, Thomas and Alito all argued in the dissent, the case should not have come to the Court at all.   The defendant, the United States (i.e., the Obama Administration), did not disagree with the Plaintiff, and supported the Plaintiff's position that DOMA is unconstitutional.   Well, fine, the Obama Administration is free to do that as a political position.   But as a matter of law, when the two parties agree, there is not adversity, and thus no "case or controversy," and federal courts have no jurisdiction.   This was self-evidently an "advisory opinion," which in itself is unconstitutional, and has long been understood as such.   The judges should never have let the case get to court.

Second, the Zimmerman trial continues, albeit farcically.   The prosecution seems to almost be trying to blow the case... the evidence that they've put on so far seems to have established that Trayvon Martin was on top of Zimmerman beating him up MMA-style, when Zimmerman defended himself.   And their "star" witness, Martin's supposed girlfriend, was apparently so ridiculous that no reasonable jury could take her testimony as credible.   Moreover, from what I understand (simply from very cursory news reports I heard), she apparently exposed that, if there were a racial animus motivating someone that night, it was Trayvon Martin's bias against white people, since he apparently told her that he was being followed by a "creepy ass cracker."     Again, this seems like a case that never should have gotten to court.   A judge should have thrown it out long before this.

The reasons why the two courts let these cases actually come to court are different, of course, but different in an instructive way.   In the Supreme Court, the judges took the case because they wanted to make a "decision," i.e., they wanted to insert themselves into the issue.   In the Zimmerman case, in a trial court, the judge let the case go through because he didn't want to make a decision that could be criticized or appealed.   Trial court judges (including the one in my case) often kick hard decisions down the road with the assumption that the parties will settle (in criminal cases through a plea bargain), or else that the jury will make his decision for him.   But doing so, particularly in the civil context, adds tremendous costs and delays to the legal process, and in the criminal context, puts citizens in unnecessary jeopardy of the loss of their liberty.

This is a long-winded way of saying that, in my opinion, the American judiciary needs, not reform via constitutional amendment or legislative act, but a change in attitude.   Judges at the highest level, in the appeals courts and at the Supreme Court, need to be much more reticent about deciding issues that ought to be decided by the people through their elected representatives (abortion, gay marriage, etc.).   But judges at the trial court level need to be much more aggressive about deciding cases early (and more cheaply) when cases are so weak that they ought never to have been brought at all.

No comments:

Post a Comment