The judiciary is one of the three branches of government provided for in the Constitution. Its function was deemed necessary by our nation’s founders and should be the least political. Well, in theory.
In fact the judiciary is split along political/ideological lines and much of this has to do with the two definitions of equality discussed in the Equality page. Again these two philosophies are Equal Opportunity and Equal Outcome.
The U.S. Constitution defines our form of government. It describes the powers and limitations of the Executive branch, the Legislative branch (split into two bodies to prevent the more populous states from overpowering the less populous states), and the Judicial branch. These three branches were to provide a system of checks and balances on each other. All three branches are supposed to protect and defend the Constitution. The amendment process was provided to modify this instrument that defines and restricts our government.
The framers of the Constitution feared a powerful central government. They witnessed first hand the abuses committed under King George III’s powerful central government. Power was doled out specifically to favored groups and denied to others, like the American colonies. Our founders feared that a government that was powerful enough to give everything was strong enough to take everything. They therefore devised a judiciary to oversee the executive and legislative branches and to prevent one or both of those branches from becoming powerful enough to restrict the freedom of US citizens.
Conservatives judges decide the outcome of cases more often than not by using a strict adherence to the original intentions and actual words of those who wrote the Constitution and its Amendments. The Constitution and Bill of Rights were written with the assumption that the Federal Government needed restrictions to prevent it from overly controlling our country’s citizens. They understood that government control could easily prevent equal opportunity by favoring one group over others. These judges side with laws that favor equal opportunity and overturn laws that discriminate against any group. To conservative judges Lady Justice really is blind and the scales are level.
Liberal judges decide the outcome of cases more often than not by using a loose interpretation of the Constitution and evaluate cases with a subjective scale and an eye on laws in other countries. They fear that certain groups will not succeed without legislative interventions and if there are not enough legislative interventions in place they will rule in such a way as to provide them. These judges side with laws that provide extra rights and benefits to certain groups. Many of these extra rights and benefits discriminate against majority groups. They will overturn laws that provide equal opportunity and provide certain “remedies” to assist victim groups. This is referred to as “legislating from the bench”. To liberal judges Lady Justice is peaking under her blindfold and putting a finger on one side of the scales.
OPPORTUNITY vs. OUTCOME
A great example of this opposing view on equality is a case recently in the news because of the Judge Sotomayor hearings. In Ricci vs. New Haven a test was administered to any interested participants meeting certain criteria to evaluate their qualifications for the position of Lieutenant in the New Haven Fire Department. The test was written by a firm specializing in removing bias against minorities from written exams. The applicants all took the same test in the prescribed manner and time restrictions. No test takers had an unfair advantage over any others. When the tests were graded the city officials were dismayed to find out that of 31 firefighters who successfully passed the exam only one was Hispanic and none were black.
These results produced a dilemma. Civil rights laws on the books prevent both disparate opportunities and disparate results. The city did not prevent any qualified minority applicant from taking the exam nor make the exam more difficult or biased against minorities. Clearly the minority exam takers did not lack opportunity and could not have been discriminated against. However, other laws correlate disparate results with discrimination. The lack of successful minority exam scores was seen by the law as proof that discrimination had occurred. City officials were going to create a problem for themselves no matter how they resolved this. The city officials feared a lawsuit by the unsuccessful minority applicants. They did not promote any of the deserving (mostly white) firefighters nor did they give an undeserved promotion to any unqualified minority firefighters.
The law about disparate results is not written in a manner that considers discrimination against the majority possible nor does it include a provision that accounts for underachievement by a minority. Since the 31 qualified firefighters were passed over for promotion because minority firefighters were less successful on this fair exam they sued the city to gain the promotions they had earned. The first court sided with the city and the case was eventually appealed to US District Court. The case was heard by Judge Sotomayor and two others and upheld with no comment. The case was appealed to the US Supreme Court and the ruling overturned. The Supreme Court justices decided in a 5 – 4 vote that trying to help minorities was not acceptable when it leads to discrimination against others. In other words, the 31 firefighters deserving promotion did not receive “equal protection under the law” as guaranteed by the Constitution’s 14th Amendment. The four liberal Supreme Court justices who voted to uphold the lower court rulings were clearly looking at the scales of justice and tipping the scales in favor of one group over another and ignoring an inconvenient portion of the Constitution.
A simple test to determine if someone is fit to be a judge at any level of the judiciary would be to evaluate their responses, and more importantly, their court decisions to see whether they agree with the following statements:
- Minorities have more rights than whites.
- Women have more rights than men.
- There is no such thing as discrimination against the majority.
- Failures of minorities are never due to underachievement.
- Minorities can not be successful without legislative and judicial intervention.
- Asians do not count as a minority because they are successful.
Answering yes to these questions or a review of decisions indicating belief in these statements should disqualify a judge or a potential judge from the bench. As we showed in the Logic section of this site adding the phrase, “Is it true that” to the beginning of each of these statements yields a false statement. The statements above are just as abhorrently wrong as the following statements and for the same reasons:
- Whites are superior to minorities.
- Women are inferior to men.
- Majorities never discriminate against minorities.
- Minorities who compete successfully against whites are overachievers.
- Minorities can only be successful if they are given extreme advantages.
- Whites are discriminated against because Asians outperform them in many activities.
Adding the phrase, “Is it true that” to the front of these statements makes all twelve of them false. Judges who decide cases based on false statements demonstrates an intellectual nature unfit to administering justice in a court of law.