Justice or Law at the Supreme Court?

Many years ago I entered law school, glowing with visions of doing justice and rescuing fair damsels and other wronged souls from distress. I maintained that view for about a year. Then one evening I found myself in company with two older men, both experienced lawyers.
One was a White House counsel; the other, his friend, a Duke University law professor. Over a bottle of bourbon we began to argue. We went at it until well into the wee hours. I had made the mistake of expressing my desire to “do justice”.
They were horrified. By three or four o’clock they were yelling. “Law,” I remember the professor shouting, “has NOTHING to do with justice!! Justice is a fascist concept. Law is PROCESS!” It took me years to fully understand what he meant.
Other lawyers have called it “system”. You build it, point by point, case by case, on precedent. If you concern yourself exclusively with avenging poor widows and making everything “fair”, you run the risk of creating “bad law” as Justice Holmes put it.
I think the best lesson I ever got in what law actually is and does came from a wealthy man who bought and sold real estate. He explained what he expected from his lawyer at a closing. “I want someone there who doesn’t care a snap whether or not the deal goes through or whether it’s a good deal or a bad one.
“I want someone with me whose ONLY concern is whether all the “I’s” are dotted and all the “t’s” crossed. I’m the one who’s all excited about the deal and the purchase. I want him to be completely indifferent.”
THAT, it can be validly argued, is the proper function and behavior of LAW—a sublime indifference to the situation of any individual, a concern only that the procedure runs its proper course—based on past decisions and experience.
Anything else is in fact EQUITY. (Equity was tossed out of the American legal system around 1876.) The best example of Equity is found in the Jewish Bible, in the story of King Solomon who determines just which woman is the real mother of the living child by taking a sword and offering to cut it in half, giving each woman a share.
It set no precedent (we know of no other case where a judge/king resorted to a similar measure), it changed no law, it had no effect on “Stare decisis”—it simply got the real mother to identify herself when she begged Solomon to keep the child alive and give him to the other woman.
That is how “justice” gets done. It really has no place in law. My drinking friends were correct. The best legal decisions ignore questions of who’s right, who’s wrong—and simply try to satisfy both sides enough so that there is no rioting or assassination in the streets.
They take vengeance completely out of the hands of the aggrieved party and, as impersonally as possible, inflict it in the name of process and the state. Anything else could risk dropping back into darker times when a victim’s family was expected to exact eye for eye, tooth for tooth.
As a result, we have “unjust” verdicts where the wrong man is sent to prison or when a really heinous act by a human or a corporation does not seem to draw sufficient punishment. Law’s only concern, historically, is to maintain the “king’s peace”—to do just fair enough a job to keep the injured parties from taking things into their own hands.
It’s NOT to “do justice”—it’s to “keep the peace”. And it IS more peaceful when judges deal with murderers rather than private individuals. I don’t know if the alternative is properly called “fascism” or not, but it would be a lot less tranquil. (Drive by shootings by peevish gang members are a perfect example of some peoples’ notion of “justice”. The Mafia is legendary for exacting “justice”. Do they do a better job than the courts?)
We’re picking a new Supreme Court Justice this summer. What much of the arguing will be about is the question: Is his interest scrupulously and only the law and its precedents—or does he allow considerations of equity and “justice” to sway him? Will he create “bad law” by settling Holmes’ “hard cases” with too much empathy and fairness?
So what will we have on the Supreme Court this time? Law or Justice? Impartial process or emotion ridden empathy? Do you suppose a bottle or two of bourbon might help?
(My two mentors and I parted friends. Foolishly, I now think, I quit law school. With more patience and a better understanding I might have made a decent lawyer. Who knows?)