Prof. John Kozy | Global Research
November 15 2011

The unfairness of American society is being recognized by many. Eighty-nine percent of Americans say they don’t trust their government; Congress has a mere 9% approval rating; America’s financial institutions are widely considered to be corrupt; the Occupy movement has emerged, some are seeking to enact an amendment to the Constitution to undo the Court’s decision in Citizen’s United. But not doing the right thing, unfairness, injustice has deep roots in America. Oliver Wendell Holmes once confirmed that fairness or justice is not the concern of the Supreme Court. Only playing the game according to the rules is. Since the Court cannot be relied upon to “do the right thing,” why should anyone believe that any American institution can be counted on to do it? What is required is a complete overhaul of the legal system.

Half a century ago, I served on a commission in the state of North Carolina which was tasked with revising the state’s criminal code. The commission was comprised of law school professors, prominent judges, and practicing attorneys. We were appointed by the state’s newly elected attorney general who had hoped that the commission would improve the law in substantive ways that would reduce the injustice that had been written into statutes and case law. He and I both quickly learned, however, that the members of the legal community on the commission were not about to do that; they insisted that no changes be made that would burden the legal community by requiring it to relearn even parts of the code and adjust practices and procedures accordingly. As a result, all that was done was that some ambiguous sentences were rewritten to be less ambiguous and some outdated diction was changed to more modern locutions. Chalk one up for changeless change. If the law was unjust, well, it was left so.

Now it is being reported that when fairness and the law collide, Justice Alito is troubled:

“the Supreme Court considered the case of Cory R. Maples, a death row inmate in Alabama whose lawyers had missed a deadline to file an appeal. ‘Mr. Maples lost his right to appeal,’ Justice Alito said, ‘through no fault of his own. . . . But a ruling for Mr. Maples,’ Justice Alito continued, ‘could require the court to adopt principles that would affect many, many cases and would substantially change existing law.’ He said he was reluctant to impose new burdens on government officials and to allow clients to second-guess their lawyers’ decisions in order to provide relief to Mr. Maples.”

Notice how easy it is for Mr. Alito to justify denying Mr. Maples justice because of a “reluctance to impose new burdens on government officials.” My, my, those poor overburdened governmental officials! Does their need for protection from their being overburdened trump a plaintiff’s need for just treatment? Apparently so.

The Court’s justices claim that “error correction” in particular cases is not their function but that the Court’s task is to “establish legal principles that will apply in countless cases.” But the Constitution never tasks the judicial system with that function, although it does direct not only the Court but the nation to “establish Justice.” Furthermore, if the establishment of legal principles were the Count’s primary function, after almost two and a half centuries, one would expect to have on hand a list or booklet of such principles that have been established. But no such booklet or list exists. Establishing legal principles is not what the court does. To understand what the Court does do, see my piece, The Supreme Court’s “Make Believe Law.”

Cases such as Cory R. Maples, Petitioner v. Kim T. Thomas, Interim Commissioner, Alabama Department of Corrections where a conflict exists between some legal principle and justice are not rare. At the present time several such cases are before the Court: a Georgia case about whether government officials are protected from civil lawsuits even if they tell lies that lead grand juries to vote for indictments, and an appeal from Charles Rehberg who was indicted three times involving charges that he harassed doctors affiliated with a politically connected south Georgia hospital system. After the third indictment was dismissed even before a trial, Rehberg sued local prosecutors and their investigator, James Paulk arguing that Paulk’s false grand jury testimony led to the indictments. In two other cases, the Court has shown little enthusiasm for reopening the cases of criminal defendants who lost good plea deals because of bad advice or bungling by their lawyers. At issue is whether to extend the right to competent legal advice to plea deals. Most of the justices seem to be reluctant to give defendants a new trial or a shorter prison term because a lawyer’s mistake caused them to miss out on a favorable plea.

Most people, I suspect, would say that it is unfair, and in a legal context unjust, to penalize someone for someone else’s mistakes. But not the Court. Fairness or justice is not it’s concern as Oliver Wendell Holmes once confirmed:

In a 1958 lecture, Judge Learned Hand, a towering presence on the federal appeals court in New York, recalled saying goodbye to Justice Oliver Wendell Holmes Jr. as the justice left for the Supreme Court. “I wanted to provoke a response,” Judge Hand said, so as he walked off, I said to him: “Well, sir, goodbye. Do justice!” Justice Holmes gave a sharp retort: “That is not my job. My job is to play the game according to the rules.”

Well, there you have it, plain and simple, straight from a horse’s mouth. The American legal system is nothing but a game played by lawyers and jurists to rules they have made up themselves. Justice, fairness, doing the right thing, has nothing to do with it. How could this ever have come about?

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