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.

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?)