Empathy ("Justice") and Law at The HIgh Court

Back during the election campaign of 1960, I got caught in a rainstorm in the middle of Manhattan. I took shelter under the flap of a newspaper kiosk somewhere around 23rd Street. It was pouring; there were no customers; so we talked.
We started talking about Kennedy. Then we segued into American attitudes toward a Catholic President (a major issue in 1960!). I was astonished to learn that he and his Italian-American compatriots had little use for Irish Catholics in general, Kennedy specifically.
From there we somehow got on the subject of the Mafia. I expressed the attitude of a mid-western WASP that the Mafia was an evil organization. He took no offense; he merely set out to explain what to him were patently obvious facts to a callow youth.
“In Sicily my uncle was a ‘capo’”—a Mafia chieftain. “A poor man came to my uncle. He said a wealthy neighbor had stolen two of his few sheep. Yes, he had gone to the Carabinieri. They had dismissed him—‘What can we do about two sheep?’
“So he came to my uncle. My uncle went to the hall or records and went through all the recorded sheep transactions of the past several years. Then he went and counted the rich man’s sheep. Two too many.
“He told the rich man, ‘Return the sheep or they will find your head in the woods’. The sheep were immediately returned. Justice was done. I can still remember the way he waggled his finger at me. “Now I tell a story about here, in New York.”
“I used to be a barber. The most valuable things I own are my old barber tools. They cost hundreds of dollars. One day I came home and found that I had been robbed—all my pants were taken and my barber tools.
“I got to thinking. At the back I share a fire escape with the apartment next door. A welfare family lives there. They are always home. One day I felt sorry for one of the older kids and I gave him one of my suits. He gave me back the coat; only the pants fit him.
“So I went to the police—explaining how easy it would be to get from their apartment to mine, about the pants. They told me there was nothing they could do.” (Police in New York limit their concern over petty robberies to filling out insurance forms so the robbed can collect on their policies. They do nothing else.)
“I went across the street to the candy store and went in the back room where the bookie was. I told him my story. He said, ‘I can’t do everything for you. What do you need to have back?’ I told him I wanted my barber tools. He nodded.
“Next day I came home and my tools are lying on my kitchen table.” He looked at me with disdain, “So, who do you think I vote for? The police—or the Mafia?” (He was speaking of the old, italian Mafia—which made its own streets the safest, quietest in New York.)
The rule of law failed him. It failed the poor man in Sicily. So they came to the local “king” for Justice. He dispensed pure, equitable Justice—with no reference to precedent or legal jurisdiction. Several of the more liberal members of the Senate are calling for what is really the same thing is they contemplate appointing a new Supreme Court Justice.
They want empathy. Admittedly the Carabinieri showed none. They want emotional considerations taken into account. The bookie did that. Failure at law—as it did when the original Equity Courts were created—has left the door open for this kind of appeal.
But what do we want? The bookie or an improved police force? How do we improve it—or the courts? These are the questions the Senate is actually facing. President Obama—a black man from our most prestigious law school—is looking at the same questions.
The problem is ancient. The solution is, at best, imperfect. But let us understand what we are really deciding. As a Democracy we have the power to choose whichever one we want; let’s just understand what the choices really are.
I think my little news vendor still has lots of company.