Part 1: Dim Lights in A Dialogue on Fairness

Per John Rawls, “The concept of justice I take to be defined, then, by the role of its principles in assigning rights and duties and in defining the appropriate division of social advantages. A conception of justice is an interpretation of this role.” is said in a context of the “original position”, a condition wherein the the construction of a theory of justice is made unaware of one’s own social status or to what degree this system may (dis)advantage them, presupposing that, should they be the least advantaged, it would benefit them, and therefore everyone in less need, thereby promoting an ideal of a fair system where no one starves, but everyone has needs that are met commensurately by society, absent motivation to try to, for example, act or conspire to starve someone, or a class of someones, through informed choice of one’s own advantages and how they might be on the beneficial side of a resulting disparity.

There is no better avatar for why such a system of justice would be ideal than the Constitution of the United States and its abuse by the judiciary against human interest, and in the context of its framers benefiting from such a foundation of imbalance and disparity while promoting a document, at least nominally, that seeks to nullify the ability of the most advantaged and influential (a Platonic many, and in the case of the United States this has always been the wealthiest most socioeconomically secure, and therefore politically connected, class) to tyrannize over the least advantaged (the thinking is to prevent a minority from being oppressed by a majority, but in the United States, an intersection of factors can mean that this is a vast majority of a given population under the boot of such an aforementioned corporatist class, for example). Erwin Chemerinsky argues as his main thesis in The Case Against the Supreme Court that this is precisely the net result of the Supreme Court’s legacy, up to and including the Roberts Court, and a new preface details the present day court with a decisive split in favor of staunch corporatist and far right religious extremist interest— in my opinion, not primary to this discussion but for a later entry in this series, making it a complete non-issue about the role of liberal (at best) naivety and (at a likely worst) complicity in the resulting make up of the judiciary, as a hypothetical “wising up” of liberal mentality would now no longer mean much of anything, the die having been cast for legal remedy.

Chemerinsky, fairly, asserts that while the Court has a history of often aligning itself with superstructural (Marx’s word, not his) interests (Chemerinsky, perhaps more accessibly for the purposes of the specific ways the Roberts court has conducted itself, notes monied interests like corporations and the ultrawealthy), and while it has, in the most crucial moments, been derelict in protecting the vulnerable, had laid tremendous groundwork for the securing of things like civil rights (which argues means its existence has done more good than harm, but specifies many instances where the harm would not have occurred at all in some extreme cases had the court not existed); something he correctly notes was not the work of liberal activists in the legislature, but of activist pressure on a conservative court to rule in the public interest, rather than through ideological misuse of the word of law (something that only happens, in a more materialist perspective of history, when the state no longer fears legitimacy crisis while behaving openly against legitimate state action and where public opinion clearly rejects the conclusion, a cultural matter that one could argue is the basis of a law’s utility in the first place), fearing what the public’s response might be. Chemerinsky opens the book with a discussion about specific cases where the court ruled ideologically against pattern of otherwise expansive mindsets about the rights of individuals; he cites, for example, the interests of slaveholders (which many Justices having owned slaves, for example) in ruling on matters like choosing to declare the Missouri Compromise unconstitutional in order to support the ability of slaveholders to repatriate runaway slaves to the state they were enslaved in, and again in Dred Scott, which they reaffirmed freedmen were not citizens, and therefore had no right to engage federal suit in the first place. Eugenics was another area where the Court ruled in favor policy to force sterilize those even suspected to have been disabled (and many times were able to prove they were not in later years); a practice that might have continued if nearly identical policies in Nazi Germany had not made the policy less appealing to the American public seeking to distinguish itself from its enemy, one that any amount of investigation calls that diametrical opposition in heavy dispute (compared with, for example, the primary force in defeating the Nazis and ending the Holocaust, the Soviet Union—a state whose justice system will be discussed in a similar capacity in a later entry).

This is to establish one thing, in Chemerinsky’s estimation: when the Court could have acted decisively in the public interest as the body determining compliance with the Constitution in an application of law as a means of serving human interest, at times when it was most positioned to do so against bleak moments for humanity it could resolve, it simply did not, and that this is demonstrably different than highlighting the periodic failures of other governmental bodies because of how starkly the contract is from, both, the record of said court in the expansion of rights and prevailing theoretical sentiment from the court when not reviewing a question before the court. This has allowed the condition we experience today, of a court that is not bound by anything but ideology in its decisionmaking, relying on the most tenuous interpretations, and inconsistent application of claimed judicial philosophy, and to do so openly.

Chemerinsky argues the Constitution's difficulty to change protects minorities from the "tyranny of the majority." This aligns with Rawls' concern for fairness towards minorities (be they racial, economic, or simply referring to a class disadvantaged, and therefore a minority of influence in a framework meant to be representative) and highlights the failure of the Court as it has ruled in moments that oriented the state toward cultural disaster (the Missouri Compromise ruling, for example, being a major factor in the breaking out of the Civil War; leading to further crises that led to dispute over the 13th, 14th, and 15th amendments’ ratification and application, when much of this could have been brought to a lower simmer in the courts when presented with a change to stop the expansion of slaveholder influence over lawmaking in the United States)—Rawls emphasizes principles and a fair application of the law, and Chemerinsky notes a failure of the court to do precisely this, in favor of ideological gimmickry abusing semantics and logical reasoning to arrive at an interpretation of precedent, law, or a feigned ignorance of it as utilizable, or to put it in almost Bush-era terminology about judicial activism “legislating from the bench”, something that is inarguably what happens when you act or not act with a specific ideological outcome in mind to make the logic fit that conclusion.

Rawls himself might advocate for interpretations that consider the original intent and evolving understanding of those principles, which is, in the end, perhaps by the end of the Bush Administration, no longer even representative of the schism between mainstream liberal and conservative ideology; with the Democrats championing the latter as valid influence on the former, and Republicans arguing the former supercedes the latter in the past, now Democrats argue there is nothing to be done because rules are rules, and therefore (supposedly) no remedy is available against extremist judiciaries (conservatives acting openly to enact an agenda rather than applying law as reasonably and charitably interpreted). Both are negligent toward the public, and both are maliciously so; weaponized incompetence by liberals (adherence to “the rules” in a court they purport to understand is corrupted and unlistening; similar to the assertion one can simply vote out fascism— these are the acts of the complicit), and weaponized entrenched social and economic and cultural authority by conservatives.

Obviously, no state is bound to the principles of a 20th century philosopher like John Rawls, but his theories interrogate basic assumptions about justice and fairness under a framework like western liberal democracy, something mainstream western political entities have demonstrated a complete dereliction of duty toward it (justice) and its constituents, and Chemerinsky’s criticisms of the Court fall into this category. Per Rawls, “The fundamental criterion for judging any procedure is the justice of its likely results.”— when the Court seeks to engineer an outcome, and interprets and applies in a way to support that outcome, rather than interpreting and applying justly and in the interest of the public or in accordance with a good (or often better) faith interpretation of the law and its likely applicability, it rejects openly the importance of justice. Rawls, himself, believed in a socially responsible and compassionate capitalism under liberalism, when we have the entire history of the United States from its founding itself being its own example, of how this could never possibly be true, and as long as this fact is not confronted, with a political spectrum with no opposition to it; just malicious actors, and the maliciously enabling policy nerds who claim to abhor them while being empowered to combat them and failing to meaningfully do so, because, then we enter the realm of what it means to be the superstructure, that underlying all of this is the harm done to capitalism or whatever prevailing economic or cultural hegemonic force on the markets and society needs to be upheld is challenged by those made most influential by it— today a range of influences such as banking and healthcare and religious conglomeration, but in the past included the interests of slaveholders (and today still includes a prison industrial complex), so one need not look hard for why so few in the superstructure today push back all that hard and claim helpless to enact remedy even if one did not support an emergency measure like packing the court, for example, the argument being that reactionaries could just pack the court right back, but if the cost is, allegedly, democracy (assuming this even exists, which in Citizens United, again, the court ruled in favor of backing interests, determined it absolutely no longer does) itself, then what is the true risk, exactly, if this can, indeed, be fought?