Law, Equity and Sonia Sotomayer

Barack Obama has finally done and said something that scares me. He has even pushed me into a corner where I find myself agreeing with two men I never thought I’d EVER agree with. Forty-five years ago I sat up all night arguing with two lawyers.
We got drunk as skunks as we battled back and forth. I was a first year law school student eager to take up my lance and rush forth to do justice. One of the other two gentlemen was chief legal counsel for the Equal Employment Opportunity Commission; the other—his best friend—was a Duke Law School Professor.
I prattled of justice, fairness and equity; they kept bringing the discussion back to LAW. By four a.m., we probably weren’t as coherent as a jury might have liked, but they had thoroughly disabused me of my naïve view of the legal profession.
“Justice, as a concept, has no place in LAW,” they kept repeating. It is an absolutely alien notion. Horrified—and not understanding them (for decades after)—I dropped law school and went back to writing in one form or another.
But I never forgot the night, and I kept replaying their words in my head. Charlie Markham, the EEOC counsel was a trusted mentor, and I had learned to take his ideas seriously. It has required a long, long time to see the wisdom and truth in what he and his friend were saying.
It all came back to me, with brutal clarity, when I read in the “Washington Post” that President Obama had nominated Judge Sonia Sotomayer for the Supreme Court. He did so very much because Judge Sotomayer has stated (I quote the Post) that “legal decisions [must be] informed by life experiences as well as legal research.”
(What DO they teach them at Harvard Law?)
“Life experience” by its very nature leads one to an emotional response. What my two legal acquaintances were trying to tell me is that LAW, by its very nature, MUST be dispassionate. It allows no place for decisions based on passion or even pity.
As Oliver Wendell Holmes warned of cases that enflame passions or arouse an excess of compassion, “Hard cases make bad law”. This is because law is built (like Legos) block by block on previous cases. If an impassioned desire to do “justice” for an aggrieved widow opens the precedent door to a rampage by large banks and corporations, justice may have been done, but the nation and the law have been effectively raped.
Admittedly judges are human. They can get as angry as the next man. But to an unusual degree they must strive to take an impartial, balanced and unemotional view of each case. Ideally, at its core, law works very much like a computer.
Did X defraud his investors? Yes/No. Did X commit murder? Yes/No. Did X violate the 14th Amendment rights of Y? Yes/No. Is X entitled to such and such a judgment? Yes/No.
The decisions may go on for pages, but the nub of the decision is that computer processor like answer to the Yes/No question. That Yes or No has NOTHING to do with “life experience”. No question, having been raised white, anglo-saxon protestant will mean that certain opinions will have been hard wired into me that will be different from someone who was raised poor in Harlem.
But if I were a judge, I would be obliged to look at the law, the cases presented as precedent and then make as unemotional decision—based on the Yes/No answer to the facts—as I could possibly muster.
If I were to go into the case predisposed to let my background opinions and feelings govern the out-come of the legal decision, I would do a dangerous disservice to my nation, to the court, and to the law itself. I wish I could bring Charlie and his friend back (both liberal Democrats) and let her and Obama spend a night getting drunk with them.
I believe the mistake that both Obama and Sotomayer are making is to confuse the ancient concept of EQUITY with LAW. They are NOT the same. Law is simply the question: Did you or did you not exceed the speed limit? Yes or No. (It matters not if the judge has had a long life experience getting tickets she felt she did not deserve.)
Equity, in its most egregious form, is the story of King Solomon faced with two women arguing over whose baby was dead and whose was alive. He ordered a sword to be brought in and suggested that the living baby be cut in half, one half for each woman.
He concluded that the woman who begged him to spare the child and give it to the other claimant was the real mother. He gave the infant to her. That was a simple form of “justice”. It established no precedent, opened the doors to no depredations by large corporations or financiers. It was simply an isolated incident in which the king’s justice was done—completely apart from law.
Medieval kings established Equity Courts along side of Legal Courts just for that purpose. The king, moved by anger, compassion, pity—emotions all—could dole out what he saw as justice without any law being involved. Here life experience may play a valid role.
(Presidents still have the power to pardon—completely outside of law or legal constraint. That is a carryover from Equity. The United States recognized Equity as a form of law until it was abolished in the 1870s. We have had it here.)
If President Obama wishes to drop back a century and establish an Equity Court under his Executive Wing, that might be acceptable. He could appoint Sonia Sotomayer to such a panel along with other like minded jurists who weigh their own life experiences when making a decision.
The executive branch is where such a court would belong. It is something kings—executives—did, not legal judges.
But, finally sober—and understanding my mentor and his friend—I am uncomfortable with mixing something that so clearly resembles equity with law at the bar of the Supreme Court. Do you really want a court with the motto: “If it feels good, do it”?
It could remove a lot of legal restraint in court decisions. Over time, a whole lot of us might find we didn’t like the result. Charlie’s friend from North Carolina said something to me that night I never forgot—“That kind of law leads to Fascism.” I hope he’s wrong.