The Appearance of Justice

 

It is axiomatic that, in a liberal democracy, justice must be free from bias. Every human is a breathing bag of biases but those that judge us are bound to set theirs aside in the discharge of their duties.

It was almost a century ago, 1923, that the English court of King's Bench, Lord Hewart presiding, wrote that "It is not merely of some importance but is of fundamental importance that justice should not only be done, but should be seen to be done."

It is of fundamental importance that justice should be seen to be done. In many courthouses you will find, usually near the entrance or in the foyer, a statue of Themis. She is usually depicted holding the scales of justice in her upraised hand, the sword of justice in her other and she is blindfolded.  The scales are in balance, they're not rigged, and the blindfold ensures fairness, equality before the law.

In America today, Themis might more properly be seen as neither blind nor fair.

These values don't matter much in the United States. If they did, Republicans wouldn't gleefully boast about rigging their top courts by the appointment of judges chosen not for exceptional ability but for their partisan political reliability. They want a partisan court, not a court of justice. They want a court that sees and hears and embraces one side to the exclusion of the other. They want a court that will deliver predictable outcomes aligned to their political beliefs. 

In a nation as deeply, angrily divided as the United States, stacking the superior courts with far rightwing judges is abominable. In the United States, already massively corrupted by a "captured" regulatory apparatus (regulatory panels dominated by individuals from the very industries being regulated) and a "bought and paid for" Congress beholden to the Big Donor class, the oligarchs, stacking the superior courts is a consummate act of corruption.

When you "own" the regulators and you "own" the legislators and you "own" the judges, your vaunted system of "checks and balances" is defeated. The very cornerstone of your pseudo-democracy is strangled. 

UPDATE

In today's New York Times, Kim Phillips-Fein writes that the appointment of Amy Coney Barrett would cement the Supreme Court as a court for America's wealthy and powerful. All hail the oligarchy!

With a 6-3 conservative court, the country is at risk of having the few remaining tools that permit some limits on the power of business — like labor unions and environmental legislation — weakened still further. The court’s future decisions could give corporations even more weight and workers less, by blocking potential legislation that might mitigate the impact of unfettered capitalism and staggering inequality.

As a federal appeals judge, Judge Barrett has often ruled in ways friendly to employers. She has joined rulings that stopped a case in which the U.S. Equal Employment Opportunity Commission objected to a company that allegedly assigned workers to particular geographic locations based on race and ethnicity and that limit the scope of laws prohibiting age discrimination.